Defence lawyers in the case in which the founder of defunct Beige Bank is standing trial had demonstrated at the Financial High Court in Accra how they feel former Managing Director (MD) of the First Africa Savings and Laons (FASL), Mrs Gifty Afenyi Dadzie, concealed vital information from police investigators in order to have their client implicated.
The defence lawyers led by Thaddeus Sory during the course of the trial have held that Mrs. Affenyi Dadzie who was then MD of FASL did not make full disclosure of information on the status of the sale of FASL to The BEIGE Group when she met the investigators during investigation.
Mr Sory said Mrs Dadzie “was definitely untruthful” to the Commercial Crime Unit (CCU) and Special Investigation Team (SIT) during the investigation processes.
The story below, however, gives a more comprehensive account of how Mrs Gifty Afenyi Dadzie of AGLOW Ghana (Awurade hu Ghana Mmobo prayer Crusader) the then MD of FASL a subsidiary of the First Africa Group approached The Beige Group, the mother organization of Beige Bank of whom Michael Nyinaku, founder is accused of siphoning and stealing customers funds.
Mrs Gifty Afenyi Dadzie (GAD) and Mike Nyinaku have known each other for quite a while, with the latter usually referring to the former as his godmother. Gifty Afenyi Dadzie had been the managing director of First Africa Savings and Loans Ltd (FASL) which is a subsidiary of First Africa Group (FAG) whose managing director is Kwesi Tetteh Dadzie, husband of Gifty Afenyi Dadzie. Mike Nyinaku is the founder and CEO of The BEIGE Group Ltd (TBG) whose subsidiary was the then BEIGE Bank, now under receivership.
Sometime in July 2017 Gifty Afenyi Dadzie approached Mike Nyinaku to discuss the state of affairs of FASL. At the time, FASL was encountering severe liquidity challenges as it was unable to meet the demands of its depositors. Mrs. Gifty Afenyi Dadzie thus requested for financial support from Mr. Micheal Nyinaku.
Thinking this was a temporary challenge and on the basis of the fact that Mike held her as a godmother, he gave her an amount of GHS200,000 ( Two Billion old Cedis ) as a gift to augment her needs. Within a week of having given her the initial sum of GHS200,000 as a gift, Mrs. Afenyi Dadzie, approached Mike Nyinaku again requesting for more financial support for FASL.
She explained that FASL had been given notice by the BoG that they were at risk of having their license revoked as a result of a continuous decline in their capital adequacy position. In principle, the company was in dire need of new capital injection far in excess of the initial amount gifted by Mike Nyinaku to GAD. Sensing that this could be a recurrent issue and considering his experience in the industry, Mike decided to make things more formal this time. Mike thus caused TBG to advance to First Africa Group, a loan of GHS200,000. This transaction was executed via a check dated August 8th 2017.
This second transaction paved the way for the parties to begin considering ways in which the problems of FASL could be solved more permanently. These discussions led to a decision for First Africa Group to off-load 90% of its interest in FASL to TBG at a value of USD2.5M.
The acquisition of 90% of the shares of FASL by TBG was sealed by a share purchase agreement dated September 4th 2017. Signatories to this agreement were Mike Nyinaku and Yvone Philips for TBG and Gifty Affenyi Dadzie and her Husband, Kwesi Tetteh Dadzie for FAG.
In the preamble to the agreement FAG represented to BEIGE that they had secured the approval, certain clearances and permits of the Bank of Ghana for the sale of the shares. Clause 4.1 of the share purchase agreement specifically stated that upon the payment of USD1,500,000 of the purchase consideration, TBG would assume full control of FASL. The agreement further stipulated that upon the assumption of full control of the business, TBG would commence the process of transferring all business mandates from the seller to the buyer and these would include and not be limited to mandates to all bank accounts as well as other official mandates.
The agreement also provided that the acquisition process be executed in accordance with certain key milestones.
- Commencement date
The commencement stage, transitional stage and cut-off stage. Activities marking the commencement stage was the execution of the share purchase agreement.
- Transitional date
Activities marking the commencement of the transitional stage was the payment of a part of the purchase consideration – the performance of which is deemed as the act that puts a definite seal on the contract. Other activities that were to happen during the transitional phase was that TBG were to appoint its own officials to understudy and also commence the process of taking over the management of FASL.
The understanding between the parties was that officials of TBG and FASL were going to act as joint managers of FASL until TBG pays USD1,500,000 of the purchase consideration. Once TBG pays USD1,500,000 of the purchase consideration, TBG will then assume full control of FASL.
- Cut-off date
The cut-off date was the day on which the remainder of the purchase consideration will be paid by TBG. This date was agreed and expected to occur no later than 90days from the date of execution of the contract. And as a pre-requisite for this, FAG was to ensure that it had secured all other outstanding approvals and paperwork required to close the transaction.
Following the execution of the Share Purchase Agreement on September 4th 2017, TBG made two instalments payments to FAG all amounting to GHS7M (USD1,589,684 in USD Equivalent at the time).
The first payment was made on September 5th 2017 and it involved an amount of GHS5M, the USD equivalent of which was USD1,136,519 at the time.
The second payment was made on September 15th 2017 and it involved an amount of GHS2M, the USD equivalent of which was USD453,165 at the time.
Thus as of September 15th 2017, TBG had satisfied the key condition stated in the agreement which will afford it the right to assume full control of FASL.
Post Acquisition Management
Having paid in excess of the portion of the purchase consideration which gives TBG the right to exercise full control over FASL, TBG started executing the activities outlined for the transition phase, as per the share purchase agreement.
1. In October 2017, TBG appointed officials from BEIGE into management positions at FASL. They were, Vanessa Atsu who served as the Responsibility Officer and who was stationed at the head office of FASL, Daniel Debrah, Viviana Amponsah, Jasmine Agyeman and Winfred Sefogah who served as branch managers for the Awoshie, Makola, Kasoa and Circle branches respectively of FASL.
2. Vanessa Atsu’s responsibility was to oversee the entire transition of FASL into a fully-fledged subsidiary of The BEIGE Group.
These responsibilities included the training of existing staff of FASL, the induction of the BEIGE culture into the new subsidiary and the introduction of internal administrative procedures consistent with how all other subsidiaries of BEIGE were governed.
3. With Vanessa Atsu and co now stationed at FASL overseeing the transition of the company, TBG allowed Gifty Affenyi Dadzie to continue serving in her capacity as Managing Director of FASL although essentially all her managerial authority had devolved to Vanessa Atsu who was the representative of the new majority shareholders.
4. As was consistent with how TBG managed all its subsidiaries, FASL was made to open accounts with The BEIGE Bank, another subsidiary of TBG. The first bank account that was opened at The BEIGE Bank for FASL had officials of TBG and FASL as joint signatories.
5. Having assumed control over FASL, TBG made a further total capital injection of GHS9M into FASL. This new capital was introduced as follows; GHS2M on September 26th 2017, GHS5M on November 13th 2017 and GHS2M on December 12th 2017. The purpose of this was to boost the working capital of FASL thereby reviving the business. By the introduction of these additional funds, the shareholding stake of the now minority shareholders had been further diluted to far below the 10% they held and their new shareholding stake could now fall below 5%.
6. Under the leadership and direction of Vanessa Atsu acting on behalf of TBG, the business of FASL was actively revived. Vanessa remained in charge of FASL from October 2017 until August 2018.
7. During this period, FASL opened a second bank account with The BEIGE Bank. Mandates to this account did not include out-going officials of FASL because at that time TBG had full control of the business as per the terms of the share purchase agreement and did not require outgoing officials of FASL to serve as mandates to new bank accounts at time when these officials were already being removed as mandates to existing bank accounts.
Event after takeover
On August 1 2018 when the BEIGE Bank was taken over, the Receiver directed that all bank accounts of companies relating to TBG be frozen. Consequently all accounts of TBG and its subsidiaries including FASL were frozen as well as the personal accounts of Mike Nyinaku and his family.
Some of the subsidiaries petitioned the Receiver to have their accounts un-frozen as there were no official reasons warranting such an action. They included TBG itself, BCAM, FASL, The BEIGE Pension Trust, BEIGE Assure, BEIGE Care amongst others. These requests were not heeded by the Receiver.
It has emerged that during this period, Gifty Affenyi Dadzie and another individual named Kwabena Osei Bonsu, then a manager at FASL engaged the Receiver of the BEIGE Bank to discuss the affairs of FASL with The BEIGE Bank.
Kwabena Osei Bonsu in his statement to the Police indicated that the purpose for which he and GAD engaged the Receiver was for them to enquire about the status of the bank accounts of FASL held with the Beige bank.
That meeting was held on August 15th 2018. It turns out that no official of The BEIGE Group – the then majority shareholders of FASL was informed about or invited to be in attendance at this meeting.
It has further emerged that during that meeting, Mrs Gifty Affenyi Dadzie and Kwabena Osei Bonsu presented themselves as officials of FASL to the exclusion of the representatives of The BEIGE Group who were the majority shareholders of FASL at the time.
What was striking was that, Vanessa Atsu who had served as the representative of The BEIGE Group at FASL and the substantive person managing all the affairs of FASL was not invited to this meeting or even mentioned at the meeting by GAD and Kwabena Osei Bonsu.
It has further emerged that Mrs Gifty Affenyi Dadzie told the Receiver at that meeting that TBG had only “expressed the intention to invest in FASL and consequently made a deposit for shares of GHS9M but the process was yet to be completed”. Apparently, no mention was made by GAD or Kwabena Osei Bonsu about the fact that prior to the investment of GHS9M into the company by BEIGE and amount of GHS7M had already been paid by BEIGE to FAG, the outgoing shareholders to secure the shares that were being purchased.
Thus the GHS7M and the GHS9M were two distinct transactions meant for different purposes which therefore were not to be construed by anyone as one and the same.
The GHS7M was paid directly to FAG, the outgoing shareholders as part-payment of the purchase consideration for their shares which had now been acquired. However, the GHS9M was a new capital investment made by the new majority shareholder into FASL itself. Thus the GH9M technically goes to further increase the equity stake of the majority shareholders in FASL.
Acting upon the information received from GAD, the Receiver rightfully lodged a complaint with the Criminal Investigations Department of the Police for them to properly investigate the matter.
Now if the facts as relayed by the Receiver to the Police were correct then it means that Gifty Affenyi Dadzie and Kwabena Osei Bonsu appeared to have withheld vital information from the Receiver during that meeting.
1. This was because as of August 15th, 2018 when that meeting was held between them and the Receiver, GAD knew that a share purchase agreement had been executed between TBG and FAG based upon which 90% of the shareholdng of FASL had been sold to TBG for an agreed purchase consideration of USD2.5M.
2. As of August 15th 2018, GAD definitely knew of the existence of this share purchase agreement because she in person was a signatory to that agreement.
3. As of August 15th 2018, GAD knew that an amount of GHS7M (approximately USD1.6M) had been paid by TBG directly to First Africa Group whose managing director was her husband, Kwesi Tetteh Dadzie.
4. As of August 15th 2018, GAD definitely knew that the GHS7M (Approximately USD1.6M) paid by The BEIGE Group to FAG represented part-payment of the agreed purchase consideration for the shares being sold.
5. As of August 15th 218, GAD was definitely aware of this because without having made that payment, she nor her husband would not have allowed officials of The BEIGE Group to be made signatories to all FASL Bank accounts held with other banks other than BEIGE Bank (specifically GCB, UMB, ADB and First Atlantic Bank) , let alone allow officials of BEIGE to occupy FASL offices and take-over day-to-day management of the company and all its key branches.
6. As of August 15th 2018, GAD knew that TBG had invested a further GHS9M as new capital into FASL by which action the equity stake of FAG in FASL which had already reduced to 10% was going to be further diluted downwards.
7. As of August 15th 2018, GAD was fully aware that from October 2017 till the day they were meeting the Receiver, the person responsible for managing the business of FASL was Vanessa Atsu and not her.
If all of these incontrovertible facts which were obviously known to GAD were withheld from the Receiver during the meeting held on August 15th 2018 but rather the Receiver was made to believe that ‘BEIGE only expressed the intention to acquire shares and consequently made a deposit for some share” then its safe to infer that very significant facts and vital information were deliberately kept away from the Receiver, for purposes known only to GAD and co.
Outcome of CID’s investigation
The Commercial Crime Unit (CCU) of the CID, acting upon the complaint received from the Receiver commenced investigations into the matter.
As usual, she excluded the fact that the shares had actually been part-paid for directly to FAG and that full control of FASL had passed on to The BEIGE Group as per the terms of the share purchase agreement.
What is not known is whether she provided a copy of the share purchase agreement to the police or not however, what is known without a shred of doubt is that she did not disclose that First Africa Group – the company of which Kwesi Tetteh Dadzie, her husband was the Managing Director – had received and acknowledged payment of an amount of GHS7M being part payment for the share purchase consideration agreed upon between the two parties.
Secondly the CID invited Mike Nyinaku. In a statement issued to the Police dated September 12th 2018, , Mike Nyinaku narrated the entire story about how the acquisition happened, the purchase consideration of GHS7M paid, the additional capital injection of GHS9M made into the company, the appointment of BEIGE officials to manage the company, amongst others and supported all these with the relevant supporting documentation including a copy of the share purchase agreement.
We believe strongly that upon realizing that the statements offered by Mike Nyinaku together with the supporting documentation provided by him appeared contrary to the statements earlier offered by GAD as of August 27th 2018, the police decided to confront her with Mike Nyinaku’s side of the story to afford her the opportunity to rebut any part of it thereof – and this they did.
Thus in a supplementary statement offered by Mrs. Gifty Afenyi Dadzie to the Police on September 25th 2018 , she admitted that “After consulting her boss, he confirmed that the cedi equivalent of USD1.5M had been paid by BEIGE to First Africa Group as part payment of the purchase consideration of USD 2.5M agreed”.
Now question is, was GAD trying to get the police to believe that as of September 5th and 15th 2017 respectively when those payments were received by her husband’s company, as of August 15th 2018 when she met with the Receiver and as of August 27th 2018 when she was making her first statement to the Police, she truly was not aware that consideration had changed hands between FAG & BEIGE and that BEIGE were indeed the ultimate majority shareholders and controllers of FASL?
The representations made by GAD to the Receiver and the investigators seems to suggest that had she not conferred with her boss after having met the Police on August 27th 2018, she would never have known that BEIGE had paid a substantial part of the purchase consideration and indeed satisfied their part of the share purchase agreement.
Meanwhile whilst under cross examination by Thaddeus Sory, counsel for Mike Nyinaku in the on-going trial, Mr Kwabena Bonsu (4th Prosecution Witness) who was a manager at FASL at the time has maintained that he was not aware of the existence of a share purchase agreement between First Africa Group and The BEIGE Group.