April 23, 2024

 

Senior Partner at Africa Legal Associates, Gabby Asare Otchere-Darko has issued a lengthy response to the recent “exposé” published by the Member of Parliament for North Tongu, Samuel Okudzeto Ablakwa dubbed Kitchen Scandal.

The lawmaker this week published what he described as a scandal in which he alleged that Gabby through his law firm was neck deep in a plot to rip the state off some GH¢187.3million on behalf of a client.

However, in a response issued on Friday, August 4, 2023, Gabby maintained that his firm was engaged in a rather legitimate duty on behalf of their client.

According to him, his firm has since April 2021 been engaged by West Blue Ghana Limited to assist the company recover an amount of GH¢187,356,969 being outstanding payments due it from the Government of the Republic of Ghana under a contract dated 04 August 2015, and executed between West Blue, on the one hand, and the Ghana Revenue Authority (GRA) and the Ministry of Finance (MoF), on the other hand.

“Our client’s claim is founded on clause 13.1 of the NSW Contract, which sets out without equivocation, the fees due to our client under the NSW Contract. It was a contract duly crafted and executed by the John Mahama administration, of which you were a key member.

“Clause 13.1 of the NSW Contract provides that in consideration of its services, our client shall be paid a fee equivalent to 0.35% of the final invoice CIF (Cost, Insurance, and Freight) value of import consignments entering into Ghana through the seaports, airports and land borders from time to time. Going strictly by the express terms of the NSW Contract, our client calculates the arrears still left outstanding to be in the sum of GH¢187,356,969. Indeed, a demand letter providing details of the sum of GH¢187,356,969 owed, was submitted to the Ministry of Finance on 28 July 2020 by the previous lawyers of our client, Bentsi-Enchill, Letsa & Ankomah,” he wrote in his response.

He stated that the Ministry of Finance and GRA has over the period denied the claim by his client and that various attempts by his firm to get the two institutions to give legal explanation on the matter has failed.

According to Gabby, but for the exposé by Mr Ablakwa, his firm was not privy to the legal advice issued by the Attorney General on their claim which now confirms the position of his client.

“Until the release of your article, ALA had not been afforded notice of the content of the legal opinion of the Attorney General regarding our client’s claim. If, as purported by you, the chief legal advisor to the Government is of the opinion that our client’s claim is of merit, then this revelation by you is much appreciated by us, as it actually validates the legitimacy of our client’s claim,” he stated.

While emphasising that no payment has of yet been made to his client, Gabby wondered whether Mr Ablakwa’s interest in the case was as a result of the amount involved or his client’s legitimacy to the claim, and whereas the MP accused Gabby of using his position as a cousin to President Akufo-Addo in his pursuit, Gabby questioned if Ablakwa’s position would have been any different if another lawyer was on the case.

“If I may ask: is it the legitimacy of our client’s claim or the quantum of the sum claimed by our client that bewilders you? Further, is this not a simple matter of a legitimate claim arising out of the specific performance of the terms of a contract mutually entered into by the parties? Again, has the MoF and/or GRA agreed to pay or to even sit down to negotiate it down? Would this have been a matter at all, in your reckoning, if any other qualified lawyer was handling this matter? Is it your point that as a cousin to the President it is unethical for me to represent a client who has a legitimate case against the state?”

Read Gabby’s full response below:

To Hon. Samuel Okudzeto Ablakwa

My attention has been drawn to a publication by you under the title “The Kitchen Scandal”. In this thrilling publication, you seek to castigate me and my firm, Africa Legal Associates (ALA), for our provision of legitimate and bonafide legal services to our client, West Blue Ghana Limited.

ALA was engaged by West Blue Ghana Limited on 29 April 2021 to assist the company to recover outstanding payments due it from the Government of the Republic of Ghana under a contract dated 04 August 2015, executed between our client, on the one hand, and the Ghana Revenue Authority (GRA) and the Ministry of Finance (MoF), on the other hand. We have been on this matter for more than two years now and the MoF and GRA continue to dispute the claim in spite of what we consider to be the incontrovertibility of our client’s case per the contract.
Our client’s claim is to recover arrears owed by the MoF and GRA for services it rendered to the Government of Ghana under the National Single Window and Integrated Risk Management System Contract (‘NSW contract’) dated 04 August 2015. Our client’s claim is founded on clause 13.1 of the NSW Contract, which sets out without equivocation, the fees due to our client under the NSW Contract. It was a contract duly crafted and executed by the John Mahama administration, of which you were a key member.

Clause 13.1 of the NSW Contract provides that in consideration of its services, our client shall be paid a fee equivalent to 0.35% of the final invoice CIF (Cost, Insurance, and Freight) value of import consignments entering into Ghana through the seaports, airports and land borders from time to time. Going strictly by the express terms of the NSW Contract, our client calculates the arrears still left outstanding to be in the sum of GH¢187,356,969. Indeed, a demand letter providing details of the sum of GH¢187,356,969 owed, was submitted to the Ministry of Finance on 28 July 2020 by the previous lawyers of our client, Bentsi-Enchill, Letsa & Ankomah.

Contrary to your assertion of West Blue’s contract being terminated before the claim period, note that West Blue continued to render services to the Government under the contract, following an extension of the said contract post 31 December 2018, instructively, a period not included in the claim of GH¢187,356,969, which is set between 2015 and 2018.

The MoF and GRA deny the claim of our client and state that our client’s fees were rather to be calculated on the total inspection fees, which is merely a constituent of the total CIF, paid on imports. This, if you like, constitutes the gravamen significado of the dispute.

ALA has written numerous letters to the MoF and GRA to explain the legal justification of our client’s claim. Per a letter dated 05 August 2021, the Attorney General, who is the chief legal advisor to the Government, was requested to assist the parties (MoF, GRA, and our client) with a legal opinion that would clarify the legal operation of the key terms of the NSW Contract. This request was made pursuant to a mutual understanding between lawyers from ALA and representatives of GRA during a meeting held to discuss our client’s claim.

On 13 December 2021, ALA wrote to the Attorney General for an update on the request for the legal opinion and our client’s claim in general, as all our efforts to procure an update from the MoF and GRA had thus far proven futile. In the Attorney General’s response to us, we were advised to contact the MoF and GRA as they had been furnished with the legal opinion by the Attorney General’s office.

The MoF and GRA have consistently refused to share the legal opinion with us despite numerous requests for the same. They have also refused to meet with our client since 2021 to explore a possible settlement of our client’s claim which, if not settled, could result in a hefty judgment debt against the country. It is imperative to emphasise that no money has been paid to our client since we made the demand on MoF and GRA on our client’s behalf. Not a pesewa. Indeed, the MoF and/or GRA have not sat down with ALA or the client directly to even attempt a negotiation.

Until the release of your article, ALA had not been afforded notice of the content of the legal opinion of the Attorney General regarding our client’s claim. If, as purported by you, the chief legal advisor to the Government is of the opinion that our client’s claim is of merit, then this revelation by you is much appreciated by us, as it actually validates the legitimacy of our client’s claim.

Further, a Notice of Intention to Sue was issued by ALA in a letter dated 01 March 2022. In a bid to further allow the Government ample opportunity to address our client’s claim, ALA, per a letter dated 22 July 2022, issued a reminder to the Attorney General to respond to our Notice of Intention to Sue.
It was only in October 2022 that ALA received an invitation from the Attorney General’s office, to attend a meeting together with MoF and GRA to discuss matters relating to our Notice of Intention to Sue. At the meeting, the parties rehashed their positions following which the Attorney General requested written submissions from all parties. ALA complied and submitted its client’s position but has not received that of either the MOF or GRA. Indeed, until your generous release of the Attorney General’s opinion(s), as far as we were aware, no real progress had been made. We are, indeed, thankful.

If I may ask: is it the legitimacy of our client’s claim or the quantum of the sum claimed by our client that bewilders you? Further, is this not a simple matter of a legitimate claim arising out of the specific performance of the terms of a contract mutually entered into by the parties? Again, has the MoF and/or GRA agreed to pay or to even sit down to negotiate it down? Would this have been a matter at all, in your reckoning, if any other qualified lawyer was handling this matter? Is it your point that as a cousin to the President it is unethical for me to represent a client who has a legitimate case against the state?

Be assured that there are numerous other top-tier firms in this country that are currently representing clients whose legitimate causes of action stem from quite similar issues, regarding contracts signed around the same period by the government in which you served.

Again, I wish to underscore the fact that our client has not been paid any part of the amount claimed to be owed to it under the NSW Contract. Our client’s case is not a challenge to the termination of the NSW Contract. It is simply a dispute over arrears owed for work already done and a claim for monies due it in accordance with the express terms of the said contract between the parties.

It is intriguing that you, of all people, see as a scandal lawyers engaged in their legitimate work of seeking to recover arrears owed to their clients, even when their claim, per your own “leaked” documents, is not, in principle, disputed by the Attorney General. I wonder how you reconcile your stance against ALA with the claim against you by the then Attorney General when you were a member of government? See Peace FM website:

https://www.peacefmonline.com/…/politics/201207/123769.php.

If a deputy minister at the Ministry of Education (and a non lawyer at that) could gather the moral courage and see no wrong in lobbying to be paid, a contractor, whose very claim was being challenged in court at that material time by the Attorney General, then the world may be forgiven to see as extremely curious your description today of the West Blue claim as a “scandal.” Assuming, of course, the claim against you by your Attorney General is true.

Be assured that ALA is fully committed to pursuing our client’s legal rights in respect of its claim under the NSW Contract, and that should the MoF and the GRA decide to give us audience, we are duty-bound to assist our client to negotiate a settlement with the Government on the payment of the claim. In the event that this does not happen, our client reserves its rights to resort to a lawsuit for the recovery of the debt.

In the interest of the public, we are willing and ready as a firm to defend the integrity of our professional work in this matter before any appropriate forum and without prejudice to any course of action we may wish to take in the interest of our client.

Lastly, take note that I am a lawyer and Senior Partner of a corporate law firm and that I am entitled by the codes of my profession to provide legal services to clients who approach our firm, and will continue to do so without any other considerations, besides the legitimacy of the issues involved.
…signed…

Gabby Otchere-Darko,

Senior Partner, ALA

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