William Ato Essien, Founder of now defunct Capital Bank, says 97 million quoted in a report by the Chief Manager of the Bank of Ghana (BoG), Micheal Kwame Amoako Atuobi, as investment the collapsed bank made in All Time Capital is incorrect.
Mr Essien, who is facing financial misappropriation charges together with three others, his legal counsel, Thaddeus Sory, told an Accra High Court presided over by Justice Eric Kyei Baffour that the amount Mr Atuobi had quoted in his witness was not correct.
Lawyer Sory also questioned Mr Atuobi, who was the Relationship Manager for then Capital Bank, when the liquidity support was sent to the bank, the latter said he cannot specifically remember the dates.
Mr Sory, in order to prove that the witness was not on top of issues, for which he is testifying, challenged him to mention the names of the executives, employees, and other sources he stated in his report.
The counsel equally challenged the witness as to why he did not attach documents to support his claim on the payment of business promotion he referred to in his witness statement.
The following are excerpts of the question and answers.
Further cross-examination on PW1 (Vish Ashiagbor) by Counsel for 2nd Accused
Q. Mr Ashiagbor, would you be kind enough to give your full name again to this honourable court?
A. My name is Vish Ashiagbor.
Q. Is your name registered in official documentation?
A. I am not sure I understand your question.
Q. You told this court a little while ago that your full name is Vish Ashiagbor?
A. Yes. It is Wyczynsky Ashiagbor.
Q. So when you tell honourable that your name is Vish, you are misleading the court. I am suggesting that to you?
A. I disagree, because that is how I am known, referred to and called over the years.
Q. If I went to the Registrar-General’s office and conducted a search with your name “Vish”, there will not be any record of any such name, I am suggesting to you?
A. My Lord, that is correct.
Q. The name at the Registrar-General’s office is rather Wyczynsky, which you mentioned a while ago?
A. That is correct.
Q. So, Mr Ashiagbor, I am suggesting to you that when the Bank of Ghana appointed you purportedly with the name of Vish Ashiagbor, the Bank of Ghana was appointing someone who is unknown in official documentation as a Receiver for the entire exercise?
A. My Lord, again I will disagree, because, as I said previously, that is the name by which I am known and I have been called for years.
Q. Mr Ashiagbor, from the time you were appointed purportedly as a Receiver, and throughout the period of your examination in-chief, as well as your cross-examination thus far, you have produced no document by way of a statutory declaration of an affidavit suggesting of your claim that your name Wyczynsky is the same as Vish, you have not?
A. That is correct.
Q. So when I said that the use of your name Vish in this exercise and in court is misleading, that is a statement of fact?
A. My Lord, I disagree when he says it is misleading, because I explained that, that is how I am known called and referred to, so I don’t believe there is any misleading here.
Q. None of your official certificates, I am suggesting to you, bears the name of Vish?
A. My Lord, I am not sure what counsel means by official certificates, but some certificates do, others don’t.
Q. In your witness statement, in paragraph 3 thereof, which is in evidence, you indicated therein that your appointment arose pursuant to Section 123 of the Banks and Specialized Deposit-Taking Institutions Act?
A. Yes my Lord.
Q. And, in paragraph 3 thereof, you also did say that you were appointed pursuant to section 123(2) of Act 930, together with one Eric Nana Nipa, both Directors of PricewaterhouseCoopers Ghana Limited, as Joint Receivers for purposes of winding up the affairs of Capital Bank, is that the case?
A. Yes, my Lord.
Q. Would you recollect Mr. Ashiagbor, what section 123(2) of Act 930 actually says?
A. My Lord, I need to make a reference.
Act 930 given to the witness.
Witness reads section 122) of Act 930.
Q. In this vein, Mr Ashiagbor, would you please tell this honourable court if the Bank of Ghana did appoint a Receiver?
A. Yes, I believe so.
Q. You see, by your paragraph 3, I am suggesting to you that the Bank of Ghana appointed two Receivers, yourself and Eric Nana Nipa?
A. We were appointed as Joint Receivers.
Q. You see, if you use the word “joint”, it is conjunctive and donates plurality?
A. My lord, my understanding is that in this case; no we are Joint Receivers. In other words, we act together for purposes of the receivership. I believe that answers the question.
Q. Your answer does not answer the question, because it connotes two people, and that is why you yourself used the word “we”, suggestive of two people?
A. My lord, there two individuals – myself and Eric Nana Nipa – but we are jointly performing the role of the Receiver of Capital Bank.
Q. You see, the Act does not make any reference to any Receivers; the Act does not make any reference to two Receivers, whether joint or otherwise, but mandatorily requires the appointment of a single Receiver?
A. My lord that is not my understanding of the provision of the law.
Q. Mr Ashiagbor, in the course of the cross-examination by Counsel for 1st accused person, you denied the suggestion of a conflict of interest situation?
A. Yes my lord.
Q. Are you aware, that, as Auditors, you cannot act professionally, either by yourself or by your firm under the Companies Act in relation to these matters?
A. My lord, perhaps I need some clarification. It is my understanding that because a firm does audit, we cannot undertake receivership of companies.
Q. Under the Companies Act generally, for persons acting professionally, except when you are an Auditor, if you are a lawyer, an Architect, you can act. But for an Auditor, there are limitations of what a profession can do. Are you aware of that?
A. Yes. That is why I was seeking clarification on the earlier question, because, to the best of my knowledge, our firm has not been the Auditor of Capital Bank.
From page 2
Q. Now, in the course of conducting this assignment, it was done by Price Waterhouse Coopers, your firm?
A. Again, I will seek clarification. I am not clear on when you say something was done by Price Waterhouse Coopers.
Q. I am saying that this assignment, which you named Project Eagle, and which you tendered in Court: “Investigations into certain suspicious transactions relating to Capital Bank”, which is contained in a report with various appendices, was conducted by your firm, Price Waterhouse Coopers. Am I right?
A. Yes. The report that you are referring to was prepared by Price Waterhouse Coopers.
Q. Did the exercise involve any auditing?
A. No my lord. The exercise did not involve or constitute an audit.
Q. Would you please enlighten me on what an audit is?
A. My Lord, typically, a statutory audit involves an auditor reviewing the financial statements of a company for the purposes of expressing an opinion as to whether, in material terms, they represent a true and fair picture of the affairs of the company.
Q. Now, can you please tell this honourable court, whether or not prior to your appointment as Joint Receivers and your appointment of your firm as consultants for Project Eagle, your firm, Price Waterhouse Coopers, ever acted in any capacity for Capital Bank?
A. Yes my Lord. I cannot remember the exact year. Perhaps it is either 2014 or 2015; I think it was a vendor due diligence exercise for Capital Bank.
Q. Mr Ashiagbor, in Exhibit 2 and 3, you and Eric Nana Nipa, as Joint Receivers and acting as plaintiffs, have sued a number of people?
A. Yes my Lord, but I would like to make reference to those exhibits again.
Exhibit 2 and 3 shown to the witness.
A. Yes, my Lord.
Q. And, these are the people that you seem to think are liable to you, as plaintiffs, pursuant to Project Eagle?
A. My Lord. Again, I will request for clarification here. When you say “liable out of Project Eagle” I don’t understand the question?
Q. I am saying that there are people that you allege you will have to make some recoveries from?
A. Yes, my Lord. These are shareholders of Capital Bank, and the records of Capital Bank indicate a shareholder loan. So, this is for the purpose of trying to recover that loan for the Bank.
Counsel for 2nd Accused: My lord, there will be no further questions for this witness.
Court: Mr Ashiagbor is discharged as a witness.
Prosecution calls 2nd witness (PW2).
Q. Kindly mention your full name once again to the court?
A. My name is Michael Kwame Amoako Atuobi.
Q. Where do you work?
A. I work with the Bank of Ghana.
Q. How long have you worked with the Bank of Ghana?
A. 25 years.
Q. What is your position at the Bank of Ghana?
A. I am Chief Manager.
Q. You provided a signed witness statement?
A. Yes please.
Q. Can you take a look at this document and tell the court if this is your signed witness statement?
A. Yes please. It is my signed witness statement.
Document was tendered without any objection.
Cross-examination of PW2 by counsel for 1st accused.
Q. In your witness statement, you made mention of the fact that you were appointed as a Relationship Manager of Capital Bank in April, 2015, is that so?
A. Yes.
Q. Can you tell this court what your work as a Relationship Manager entails?
A. My lord, as a Relationship Manager, you serve like a liaison officer between the Bank of Ghana and the bank in question, Capital Bank in this particular issue. And, as part of your work as a Relationship Manager, you will be responsible for receiving returns that are submitted by the bank, and also do on-site examinations of the bank. So, in summary, that is the work of a Relationship Manager.
Q. So we can conclusively say that you are well-versed with issues of Capital Bank and the practice and customs of the banking sector, is that so?
A. It depends exactly what you mean, if you can probably explain, because in Bank of Ghana we have different departments responsible for other supervisory works.
Q. What I am asking is you having been appointed as a Relationship Manager of Capital Bank, you are versed to speak on issues relating to your work as a Relationship Manager?
A. Yes, if it has to do with my reports, I can speak to it, but if it has to do with something about money laundry issues, there is another department responsible for that, so I think the question should be related to my work as a Relationship Manager so I can answer that.
Q. Did your work as a Relationship Manager include money laundering?
A. No.
Q. At paragraph four of your witness statements, you make mention of the fact that you lead a team of three examiners from the Banking Supervision Department of Bank of Ghana to conduct an on-site examination of Capital Bank in November 2015, is that so?
A. Yes my lord.
Q. At the end of your examination you came up with a report which was signed by the Supervisor Governor and dated the 15th day of June 2016, is that so?
A. Yes.
Q. Can you confirm to the court if this report is the same as Exhibit XX attached to your witness statement?
A. Yes.
Q. In Exhibit XX, you state that the report is based on books, records and returns of the bank, interview with executive, officers and employees of the bank, is that correct?
A. Yes it is correct.
Q. Can you tell this court who these executives are?
A. Executives, in this context, have to do with the senior management at the time of conducting this examination.
Q. Do I take it that we cannot name the executive or the particular executives you interviewed during this examination?
A. That was in 2015 if I recall I would have spoken to the Managing Director, I would have spoken to the Head of Finance, Emmanuel Nii Quaye, then there is a General Manager for Finance as well, in the person of Christiana Ansah, I don’t remember the name of the Head of Credit, but I would have spoken to the Head of Credit, as well as the Head of Treasury, those are the ones that I can recall.
Q. Can you recall the officers of the bank that you spoke to during your examination?
A. The officers, I cannot remember their names, but I would have spoken to officers in credits offices, in treasury, and officers in finance.
Q. Can you recall the employees you interviewed during this examination?
A. Employees here is the same as the officers, and then the executive that we spoke to, so they are not two different things.
Q. Do I take it that from Exhibit XX you do not have the names of the persons you interviewed during your examination?
A. In this report we do not actually include the names of the officers interviewed on the field, this is a standard report that we produce after our on-site examination.
Q. Again, in your report, the very first page, you stated that apart from the interviews you conducted, you also obtained information from sources believed to be reliable, is that so?
A. Yes.
Q. Can you make it known to this court what this other information that you obtained from other sources that you believed to be reliable are?
A. As I said earlier on, we have other departments that are also responsible for doing some supervisory work. So, we can rely on these other departments of published audited financial statements can also be relied on. So, these are some of the sources.
Q. Do I take it that the other departments or published audited financial statements that you referred to had nothing to do with Capital Bank?
A. I don’t understand the question.
Q. You made some suggestions in Exhibit “XX”, which include injecting additional capital to bring the capital adequacy ratio of the bank to prudential buffer requirement of 13%, is that so?
A. Yes. That is so.
Q. Can you confirm to this court that you made mention of a total investment that was placed in All Time Capital, as at the 31st day of October, 2015, to be GH¢148,714,957.57?
A. If I recall; what I remember we did in the report was to list all the investments. But for All Time Capital, I am not too sure about the total amount you are quoting. In my witness statement, what is there is 97 million?
Q. Take a look at Exhibit “XX” and look at page 22 appendix 13, you make mention of the institution, you also make mention of the total investment as at 31% October, 2015.
A. Yes my Lord. As at 31st October, 2015, that would have been the investment to All Time Capital, outstanding as at 31st October, 2015.
Q. I am putting it to you that this figure, as captured in your report, is incorrect?
A. My Lord, that is not so, the figure is correct.
Q. You have attached to your witness statement Exhibit “WW”, which is a letter addressed to Dr Mensa Otabil as the Chairman of the Bank. Can you confirm that?
A. Yes my Lord.
Q. In Exhibit ‘WW”, you state that you would appreciate receiving the Chairman’s comments on the issues as raised in the report, including details of all actions taken or planned, and their respective timelines by July 29, 2016, is that so”
A. That is correct.
Q. You did receive the Chairman’s response to Exhibit “WW”?
A. I don’t recollect, but I can find out from the office, if my lord will allow me.
Counsel for 1″ Accused: My Lord, I pray the court to make an order for the witness to bring the response.
The court makes the order.
Q. Mr Atuobi, you were the Relationship Manager for Capital Bank when the liquidity support was granted to Capital Bank, is that not so?
A. Yes.
Q. And so you can confirm to this court that the first tranche of the support was paid to the bank on the 26th day of June, 2015?
A. I cannot confirm that my Lord unless I check.
Q. I am putting it to you that the first tranche of the liquidity support was granted to Capital Bank on the 26th day of June 2015?
A. I know of a liquidity support that was disbursed, but the actual date is what I cannot confirm.
Q. I am again putting it to you that the second tranche of the liquidity support was paid to the bank on the 25th day of September, 2015?
A. Again my Lord, I am aware that the second tranche was paid, but the exact date that counsel is quoting; I cannot confirm the date.
Q. I am further putting it to you that the third tranche of the liquidity support was paid to Capital Bank on the 30th day of November, 2016?
A. Yes my Lord, counsel is not wrong with the third tranche, but the issue is with the exact date that he is quoting.
Q. You will then agree with me that all these monies that were paid were paid before 2018?
A. Yes my Lord.
Q. At paragraph 18 of your witness statement, you state that at the end of your investigations, you came to a conclusion that as part of industry practice, you observed that during the banking clean-up exercise, there were payments made for the facilitation/business development fees or some other payments to agents who assisted in the mobilisation of wholesale deposits, particularly for the public sector, is that not so?
A. Yes, but I need to provide an explanation as to why this was written. My lord, this particular statement was not part of my examination report, Exhibit “XX”. But, in my witness statement, I was actually addressing a particular issue, with regard to the payment of business promotion, that this was something that came to the attention of Bank of Ghana during the banking clean up, for which Bank of Ghana had to issue a circular. But, it was not actually part of my examination conclusions.
Q. Mr Atuobi, you have not attached any document to your witness statement to support this conclusion which you make at paragraph 18 of your witness statement, I am putting that to you?
A. I can make the notice available to my lord if that will be accepted.
Q. I am putting it to you that you did not attach any notice to your witness statement in support of you conclusion, as captured at paragraph 18 of your witness statement?
A. No, I did not attach it.
Q. I am putting it to you that you did not attach any document in support of this observation, because there is no such document?
A. Yes my lord, I did not attach the document, but there is a notice to that effect, which was issued in 2019.
Q. And so this notice you are talking about has nothing to do with your Exhibit “XX,” I am putting that to you?
A. Yes my Lord.
Q. From your observation of the payment of business development fees, did you come to a conclusion that there was an agreement, which was made between the party who was aiding the entity and the entity itself, and had nothing to do with the Bank of Ghana?
My Lord, I am not aware, as indicated in my statement, of any contract, either between the bank and anybody at all, or between the Bank and the Bank of Ghana, of the payment of business promotion.
Q. At paragraph 16 of your witness statement, you state that throughout your investigations, you did not sight the payment of any fees paid by Capital Bank to the Bank of Ghana through any prudential returns submitted to the Bank of Ghana by Capital Bank. Is that not so?
A. Yes, my lord.
Q. Can you explain to this court what you mean by “prudential returns submitted to the Bank of Ghana?
A. Yes my Lord, banks are required to submit data to the Bank of Ghana, and this data includes the balance sheet, profit and loss account, and all other financial information, mostly electronically, to the Bank of Ghana. So I was just referring to this data, some of them are submitted on [a] daily basis, weekly, monthly, and so on. That was what I meant.
The case was adjourned to November 5, this year.
The post Ato Essien in head-on collision with BoG Chief Manager appeared first on The Chronicle Online.
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