Documented revelations in court battle

Monday, January 29, 2007

By Florence Gbolu

• Mr. Richmond Aggrey (left), • Some of the documments tendered in evidence (left)
MR. DAVID ANDREAS HESSE, founding Company Secretary, and shareholder of the multi-billion dollar telecommunications behemoth now flying the MTN flag, has demonstrated in court papers that a fellow Ghanaian shareholder and Vice Chairman of Scancom from Benso, near Swedru, and himself, a full blooded Ghanaian from Ga Mashie, together secured the operating licence for Scancom (now Areeba).
He submitted that, to top the bill, he also secured the working capital for the Lebanese-owned company that has now turned round to plunge a double-edged scimitar deep into their ribs.
He was responding to an application filed by the CEO of Areeba, referring to their Shareholders Agreement, demanding a stay of proceedings to allow them to exercise a provision in the agreement to take the case outside the Ghanaian jurisdiction for arbitration.
“By Clause 13.5 of the Shareholders Agreement, the parties thereto, including the plaintiff herein have agreed to resolve all disputes arising from the agreement by arbitration in London,” CEO Goshen pleaded in a sworn affidavit.
Mr. Hesse however, filed last week that, at the time, Scancom was a start-up company and did not have sufficient funds to meet its working capital needs to enable it operate as intended.
“All the shareholders started sourcing for funds both in Ghana and abroad without avail until Mr. Richmond Aggrey, a member of the Board of Directors of 2nd Defendant company (Scancom Limited), made representations to Merchant Bank (Ghana) Limited for a credit facility for 2nd Defendant (Scancom) which was granted,” Hesse stated in his affidavit in support of his motion for an interlocutory injunction and contesting factual inaccuracies tendered by Scancom in their defence at the commercial court in Accra within the same week.
He noted further that as security and precondition for the grant of the said credit facility, Merchant Bank (Ghana) Limited requested Scancom to provide Personal Guarantees of three (3) persons with assets in Ghana.
According to Hesse, the Directors and Shareholders of Scancom approached several people in the business community in Ghana to assist by providing the said Personal Guarantees but nobody was willing to offer his Personal Guarantee for the company, which had then just started operations and had a handful of subscribers on its Network.
The affidavit stated further that representations were made by the said Mr. Richmond Aggrey to Merchant Bank (Ghana) Limited and the Personal Guarantees were provided by Messrs Jamal Ramadan, Ghassan Queida both non-resident Lebanese nationals and he, the plaintiff.
Noting further, the plaintiff said after the facility was granted by Merchant Bank (Ghana) Limited, the Company was then able to operate and generate revenues and loans from various banks in Ghana.
“It is my belief that if I had not provided my Personal Guarantee, Merchant Bank (Ghana) Limited would not have granted the credit facility to 2nd Defendant and that would have been the end of the dream of all the shareholders of 2nd Defendant to set up and operate a mobile telephony network in Ghana,” plaintiff’s affidavit read.
Mr. Hesse additionally stated that “It is my further belief that if the business of 2nd Defendant had not been successful and 2nd Defendant had defaulted in the payment of the loan facility, Mr. Jamal Ramadan and Mr. Ghassan Queida as non-resident Lebanese nationals resident in Lebanon would have left me alone in Ghana with my assets at the mercy of Merchant Bank (Ghana) Limited.”
The plaintiff’s affidavit went on to state that legal services for the company had at all times since the time Investcom Consortium Holdings S.A. joined the company as a shareholder, been provided by his Law Firm, Hesse & Hesse (which until March 1 2006 was known as Hesse and Larsey) and never by himself in his individual capacity.
According to him, throughout his dealings with Scancom, he separated his personal interest and investment as an individual shareholder in the company from legal services rendered by the Law Firm of Hesse & Larsey such that whenever a cheque is issued in the name of Hesse & Larsey meant for him in his individual capacity as shareholder of the company, he always insisted that the cheques be re-issued in his personal name.
He indicated that in 2005, Scancom Limited made payment to Hesse & Larsey for legal services performed at a time that the company was still paying him a monthly sum of One Thousand, Five Hundred United States Dollars (US$1,500.00) on account of his dividends.
Although Investcom Consortium Holding S.A., had always claimed that it had advanced loans to Scancom, neither it nor Scancom had shown to the Board of Directors or other Shareholders of 2nd Defendant any official document from any Government Agency in Ghana approving and confirming the loans purportedly advanced by the two defendants.
Stating further, plaintiff indicated that he had never met with either of the defendants or Mr. Ahmad Farrouk to go into account.
Mr. Hesse added that he had been calling for accounts between Scancom Limited and Investcom Consortium Holding S.A, but this they had consistently refused to do.
Plaintiff mentioned that in 1999 there were serious problems between Ghana Telecom and all the mobile telecommunications operators, (2nd Defendant, Celltel now Kasapa and Mobitel now Tigo) and in order to present a united front, the mobile telecommunications network operators formed a loose association known as Ghana Mobile Networks Association.
According to plaintiff, when the problem could not be solved, the mobile telecommunications network operators agreed to file a Suit in their individual names against Ghana Telecom.
Mr. Ahmad Farroukh, then Managing Director of Scancom, informed the other operators that the lawyer to file the Suit for Scancom was their new lawyer Mr. Benson Nutsupui of the Law Firm of Kuenyehia & Co. Additionally, plaintiff stated in his affidavit that Mr. Ahmad Farroukh later informed him that the other mobile telecommunications operators advised against the new lawyer’s engagement to handle the matter for Scancom because he did not have the relevant experience in the matter and that the other operators had recommended that the Law Firm of Hesse & Larsey who have relevant experience in the matter should file the Suit on behalf of 2nd Defendant.
‘Mr. Ahmad Farrouk later informed me that Mr. Benson Nutsupui had been assigned another role in the conduct of the case in Court.
Prior to the Suit by Scancom against Ghana Telecom in 1999 as aforesaid, it was Mr. Benson Nutsupui who was filing Suits and representing the 2nd Defendant as per Exhibit 'DAH24' being one of such Suits filed by Mr. Benson Nutsukpui.
I have attached hereto, e-mail correspondence between Mr. Trygve Tamburstuen, Chairman of the Board of Directors of 2nd Defendant and myself on the resignation of the Directors of 2nd Defendant as Exhibits 'DAH25'.
Since 2nd Defendant engaged Mr. Benson Nutsukpui, as aforesaid, it is Mr. Benson Nutsukpui who has been attending all meetings at the National Communications Authority, other Government Agencies and meeting with editors of newspapers.
According to recent publications in the media, Mr. Benson Nutsukpui and Mr. Ahmad Farroukh met with the Editor-In-Chief and Chief Executive Officer of The Chronicle Newspaper at the Golden Tulip Hotel on the 5th day of July, 2006 to hold discussions, aspects of which were published in the said newspaper on matters pertaining to the business of 2nd Defendant and myself.
On the 10th day of October, 2006 Mr. Brent Goshen and Mr. Ziad met with me at the offices of the Law Firm of Hesse & Hesse and demanded the back-dated Invoices which I had refused to give to 2nd Defendant and I informed them I was not going to give them any back-dated Invoices.
On the 5th day of October, 2006 2nd Defendant instructed One (1) of its Accounts Managers to call me to demand the back dated Invoices which I refused as per e- mail correspondence between Mr. Ziad and myself marked as Exhibits 'DAH26' DAH27', 'DAH28' and 'DAH29'.
I have never discussed any property acquisition with 2nd Defendant or Mr. Ahmad Farrouk or at all for which I require money from 1st Defendant or 2nd Defendant.
I have attached hereto and marked as Exhibit 'DAH30' Search Report from the Cyprus Company Registry to show the date of incorporation of the 2nd Defendant's subsidiary in Cyprus and other matters relating thereto and other documents marked as Exhibits 'DAH31', 'DAH32' and 'DAH34' to show that between August and September 2003, discussions between Mr. Ahmad Farroukh and myself had been on 1st and 2nd Defendants’ investment in Cyprus and no more.’