3 accused of causing financial loss want to pay

Daniel Duku, a former Chief Executive Officer (CEO) of the Venture Capital Trust Fund (VCTF) who is standing trial with five others for allegedly causing financial loss of Gh¢42.8 million to the state has decided to refund Gh¢15 million as restitution to the state.

Two other accused persons- Irene Anti-Mensah, who was an Executive Assistant to Mr Duku and Frank Aboagye Mensah, the husband of Anti-Mensah, have entered into an agreement with the Attorney -General (A-G) to pay restitution to the state.

Per their actions, the three accused persons have essentially pleaded guilty to the charges leveled against them but want to make amends by refunding the money in line with Section 35 of the Courts Act, 1993 (Act 459).

Agreement
The Director of Public Prosecutions, Mrs Yvonne Atakora Obuobisa, Friday, June 5, 2020 informed the Accra High Court that the three accused persons have reached an agreement with the A-G, and therefore the state would like the court to accept the agreement and convict the accused persons as guilty.

Justice Anthony Oppong, the presiding judge, however, said the agreement for restitution had not been fully executed by the accused person and the A-G as it has not been signed by the accused persons.

He, therefore, directed the two sides to fully execute the agreement and file it at the court for the court to determine it per Section 35 of Act 459.

Act 459
Under Section 35 (1) of Act 459, a person accused of an offence which had caused “economic loss, harm or damage to the state or state agency may inform the prosecutor whether the accused admits and is willing to offer compensation or make restitution and reparation for the loss, harm or damage caused.

Section 35 (2) of Act 459 states that when an accused makes an offer of restitution, the prosecutor shall consider whether the offer is acceptable or not and inform the court.

In the event the offer is not acceptable to the prosecution, the trial shall continue, but if the offer is acceptable, the accused person will plead guilty and the court will convict him on his own plea.

When passing sentence, the court will then order the accused to pay the restitution based on conditions set by the court.

However, per Section 35 (7) of Act 459, if the accused person fails to fulfill the conditions set by the court for the payment of the restitution, the court shall pass a custodial sentence on him.

Venture capital scandal
The other accused persons are Richard Lassey Agbenyefia, a former Member of Parliament for Keta and a former member of the Board of Trustees of VCTF (the Board); Kofi Sarpong, was an investment officer of VCTF and Charity Opoku also known as Charity Ameyaw, was an accountant at VCTF.

They have been variously charged with 86 counts of willfully causing financial loss to the state, abetment of crime, stealing, defrauding by false pretences and issuing of false cheques.

Prosecutions Facts
According to the facts of the case, Duku, facilitated the recruitment of Irene and Sarpong, who were his work colleagues at the Ghana Investment Promotion Authority (GIPA).

Upon assumption of office, Duku introduced a loan scheme named Development Assistance Fund (DAF) to provide credit directly to individuals and companies in clear contravention of the VCTF Act and contrary to the objects of VCTF.

Despite the advice of solicitors of VCTF on the illegality of the proposed loan scheme, Duku allegedly managed to obtain the approval of the Board for the establishment of the DAF scheme.

According to the prosecution, Duku, by approval of the Board, could only approve loans not exceeding GH¢30,000.
Any loan amount above GH¢30,000 was subject to Board approval. The Board also approved strict guidelines under which the loans were to be disbursed.

An amount of GH₵1,000,000, which was later increased to GH₵2,000,000 was approved by the Board as a revolving fund for the DAF project.

According to the prosecution, investigations have revealed that the Duku disbursed various sums of money under the scheme, the total of which far exceeded the approved amount of GH₵2,000,000.

Prior to the appointment of Duku as CEO and the establishment of DAF, VCTF operated an existing scheme which gave loans to farmers in the Northern and Brong Ahafo Regions for the cultivation of sorghum.

This loan scheme known as the Special Purpose Vehicle (SPV) gave loans to certain Venture Capital Finance Companies (VCFC) namely SINAPI ABA and Techno Serve Company Limited for onward lending to farmers.

The SPV had a minimum of GH₵50,000 and GH₵500,000 as the maximum amount that could be disbursed at a time to the Venture Capital Finance Companies.

This programme ran successfully until the Duku assumed leadership in June 2010 when the project stopped.

However in or about October 2010, the SPV was reintroduced at the instance of the 1st accused (albeit with Board approval) this time to be controlled directly from the office of the 1st accused. 1st accused could however only approve loans up to GH₵50,000. Any loan amount above the GH₵50,000 threshold required Board approval.

Contrary to and in flagrant disregard of the approved Board thresholds for the CEO, the 1st accused person persistently approved loans purportedly under DAF and SPV well above his threshold directly to a number of companies some of which were non-existent. Some of these fictitious companies bore addresses, which belonged to the 1st accused.

The accused persons used the names of a number of companies belonging to other persons to obtain loans without the knowledge, permission and or consent of the owners of the companies.

The 6th accused, who was at all material times the accountant at VCTF and a signatory to the VCTF account, aided the 1st accused by signing blank cheques to grant loans to some of these companies while on leave. Some of the cheques were issued even before the purported applications for the loans were received. The 1st accused, using these blank cheques signed by the 6th accused, granted loans totaling GH¢4,240,000 which resulted in a total loss of GH¢12,601,796.25 being principal and accrued interest to the Fund.

The Board, upon realizing the financial challenges facing the Fund in its sustainability, instructed the 1st accused in 2013 to stop the disbursement of loans under the DAF scheme and to rather concentrate on recoveries. However, the 1st accused misled the Board by reporting that he had recovered 81% of the outstanding loans under DAF when he knew that to be false and consequently obtained the Board’s approval to resume disbursements under the DAF scheme. At the request of the 1st accused, the Board relying on the false report of the 1st accused person, increased the DAF Fund from GH¢1,500,000 to GH¢2,000,000.

Again, in January 2015, the Board instructed the 1st accused to completely stop the disbursement of loans and focus on the recovery of loans already disbursed. These instructions were ignored by the 1st accused who authorized the disbursement of more loans without the knowledge or authority of the Board.

In June 2015, even though the appointment of the 1st accused had been terminated, he remained in office until September 2015 during which period he disbursed some more loans to companies some of which belonged to his official driver and some cronies. During the period, the 1st accused obtained an amount of Twenty-Six thousand and Sixty-Three dollars ($26,063) to attend an official programme in the United States of America.

Even though the 1st accused did not attend the programme he failed to pay the money to chest and dishonestly appropriated the entire amount. The Board on realizing that the 1st accused did not attend the programme, directed him to refund the Twenty-Six Thousand and Sixty-Three dollars ($26,063) to VCTF in response to which directive the 1st accused issued false cheques to VCTF, which were dishonoured upon presentation at the bank.

The 2nd accused person too obtained loans in the names of companies based on false representations to VCTF without the knowledge, permission or approval of the owners of the companies whereas in other instances the loans were obtained in the names of non-existent companies.

The 3rd and 4th accused persons, who were responsible for evaluation and processing of loan applications to VCTF, failed to conduct the requisite due diligence on loan applicants but rather facilitated the grant of loans through falsified records by entering false information on the loan application forms.

It has been established that the 5th accused person used non-existent companies to obtain loans from VCTF and acted together with 1st, 3rd and 4th accused persons to dishonestly appropriate various sums of money from VCTF in the names of these companies.