Friday, July 28, 2006

RESPONSE TO COMPLAINT BY MD OF GUINNESS GHANA TO THE GENERAL LEGAL COUNCIL

JOE ABOAGYE DEBRAH LLM (Lond.)
BARRISTER-AT-LAW
1st Law Tel: 00-233-21-253751
#28/1 Castle Rd., Adabraka 00-233-20-8157566
P. O. Box AD233 00-233-24-4293270
Adabraka, Accra E-mail: joe_debrah@yahoo.co.uk
March 20, 2006
The Chairman
General Legal Council
Accra.

Attn: Mr. E. Bart-Plange Brew, Secretary

Dear Sir,

RE: COMPLAINT OF DEVLIN HAINSWORTH (GHANA BREWERIES LIMITED) AGAINST JOSEPH ABOAGYE DEBRAH – COMMENTS

Further to your letter dated March 15, 2006 in respect of the above-captioned matter, please find my comments as follows:

1. The matters complained of are sub judice, being matters that are currently pending before the High Courts in the cases of John Ofori vrs. Guinness Ghana Breweries Limited (Suit No. AC16/2006), The Republic vrs. Ghana Breweries Limited, ex parte National Labour Commission (Joe Aboagye Debrah, Interested Party), (Suit No. AP3/2006) and the Republic vrs. The Securities and Exchange Commission, ex parte ThinkGhana (Suit No. AP22/2006).

2. Being matters that are pending before the courts, I wish to stress that the response herein is given out of respect to the General Legal Council (GLC), such that the GLC will be in a better position to fully appreciate the issues and to dismiss the complaint accordingly as being without any merit, unproven and tainted with falsehood and also a matter that the GLC cannot lawfully intervene until the Courts have fully dealt with the issues.

3. The petition does not state what confidential information is being complained of. This must be clearly elaborated to enable me respond appropriately.

4. It is also unclear from the petition on behalf of what entity the complaint is being filed. The Complainant claims to be the Managing Director of Guinness Ghana Breweries Group (GGBG), an entity which does not exist in law and was not even registered in compliance with the Registration of Business Names Act, 1962 (Act 151). Mr. Hainsworth is also the Managing Director of Guinness Ghana Breweries Limited (GGBL). Interestingly, he still styles himself as the Managing Director of Ghana Breweries Limited, an entity that would have been moribund if the complainant’s own public statements that GGL and GBL have merged were true, the subject matter of the application before the High Court on breaches of securities laws.

5. The GLC would have to distinguish between GGBG, GGBL, GGL and GBL in order to fully comprehend the matters raised herein.

6. That I have never worked with nor been employed by GGBL. I was the Legal Adviser of GBL until June 30, 2005.

7. Together with other young professionals who are passionate about making a change in our dear nation, I established ThinkGhana, which is a company limited by guarantee established and dedicated to inter alia, upholding the best practices and principles of corporate governance and securities regulation in Ghana.

8. That ThinkGhana filed a complaint against GGBL for breaches of Ghana’s securities laws with the Securities and Exchange Commission (SEC) which has chosen to abdicate its legal duty by refusing to investigate the complaint as provided by law.

9. ThinkGhana has therefore filed an application before the High Court for an order of mandamus to issue against the SEC in respect of the matters raised in our complaint.

10. I am solicitor for a client in a pending matter against GGBL in the High Court, to wit, John Ofori vrs. GGBL.

11. That GGBL and GBL are different and separate legal entities and the complaint of the petitioner has rather strengthened the case of ThinkGhana that there is a concerted attempt by the regulatory authorities to abide breaches and continuing breaches of Ghana’s securities laws, which situation an august body like the GLC should insulate itself from.

12. That the issues raised in the complaint form the subject matter of actions pending before the High Courts and the petitioner has ample opportunity to argue its case before the law courts.

13. That I have taken a solemn oath as a barrister to uphold the law and the interests of my clients at all times, which I have endeavoured to and will continue to do.

14. That the exhibits tendered by the petitioner are irrelevant to the issues raised and indicate matters concerning GGBL and not GBL. I encourage the GLC to request the petitioner to tender all the memoranda I sent to the MD of GBL after the takeover from December 10, 2004 till I exited the company on June 30, 2005 which will afford the GLC a more objective analysis of the activities of the petitioner pertaining to the systematic and deliberate abuse of Ghanaian workers rights.

15. That even if I were involved in suits involving GBL, I would be within my rights as Counsel so long as I am not using confidential information or acting against them in matters in which I had already appeared as Counsel.

16. That the case referred to is a matter in which Bentsi-Enchill & Co acted as solicitors for GBL and I appeared in court in my capacity as the Legal Adviser of GBL and the petitioner has not shown anywhere in his petition that I have appeared in any matter against GBL in respect of the same matters. It is obvious from the provisions of rules 5(3) and (10) of LI 613 that it is not applicable to me and I have not breached any of its provisions.

17. After 49 years of independence, in a world where development-oriented nations are making strides in securities regulation and sanctions are being applied to breaches of law, it is utterly baffling that in Ghana, it seems that there is no law and that anyone with the right connections or enough influence cannot only break the law but also seek to annex national institutions and hold them to ransom and make them do their bidding, when in their own countries, the law will take its course regardless of personality or clout.

18. The complainant heads GGBL which is in serious breach of Ghana’s securities laws and its hands are so unclean that to say the least, it is a brazen effort to seek equity at the highest disciplinary body of the legal profession in respect of undefined offences and unsubstantiated allegations against a barrister who has had the nerve to stand up to a multinational that is in breach of Ghana’s laws.

19. Rules 5(3) and 5(10) of LI 613 are inapplicable to the matter as the petitioner has not shown which client he refers to. If it is GBL, in respect of which matter(s) is he complaining? If it is in respect of GGBL, why is he making the complaint on GBL letterhead? Which case (s) and which confidential information is being referred to?

20. Rule 42 of the Code of Ethics of the Bar is also totally inapplicable to the issues raised as I have never acted against GBL in the same matter or in any matter related thereto.

21. Assuming without admitting that the matters complained of even affected and concerned GBL as an entity, public policy demands that where crimes have been committed, or are reasonably suspected to have been committed as in the present matter before the High Court, the fact or probability of wrongdoing will at law, negative any argument of confidentiality that is raised. The GLC cannot be seen as a body that encourages lawyers to condone securities crimes on the unsubstantiated allegation of confidentiality. What confidential information has been breached and what confidentiality agreement has also been breached?

22. Lawyers in Ghana, including myself, have to make the solemn oaths we have taken as professionals enure to the benefit of this country and our clients and make truth and standing up for law and order fashionable again in Ghana.

23. The GLC should respectfully, throw out this matter as being completely unmeritorious and an attempt to find a ‘soft forum’ to articulate matters that are pending in court.

24. That the petition is an attempt to intimidate me and also to set a cloud on my hard-earned achievements and reputation as a lawyer and that those who breach Ghana’s laws should not under any circumstances be allowed to use an august body such as the GLC to achieve their own selfish, illegal ends, something that can never happen in their own home countries, which effort, falls flat on its face.

As a lawyer, I fully appreciate and respect the role of the GLC. However, as a young professional, I am amazed at the inability of people in high places who are fully aware that wrongs have been done, to completely look the other way and rather lend credence to wrongdoers in the course of their unlawful activities. The GLC should therefore not entertain this matter at all as it is sub judice and also completely unmeritorious. I therefore submit that in the light of the foregoing, the GLC should reflect soberly on the provisions of section 18 of the Legal Profession Act, 1960 (Act 32) and make a determination that this is a matter where it should not appear to the Disciplinary Committee that an inquiry ought to be held into the complaint and so should not proceed to hold any such inquiry.


Please be advised accordingly.

JOE ABOAGYE DEBRAH Esq.
1stLaw, Accra

GGBG=GGL=GGBL=GBL? Business Names and Ghana's Corporate Laws; An Insight

Introduction

I will attempt in this article to tackle the issue of Ghanaian corporate law regarding the registration of business names and the use thereof in Ghana with particular emphasis on Guinness Ghana Breweries Group (GGBG) and the other corporate names it has sought to operate under since the takeover of Ghana Breweries Limited (GBL). This issue which has been raised before is highlighted by an article that appeared in the business columns of the authoritative Daily Graphic newspaper of Ghana on July 6, 2006 captioned “ GGBL unveils new outlook for Star Beer”. It is particularly interesting when the article gets mixed up in the distinctions between the named corporate entities in the same article, Guinness Ghana Breweries Group (GGBG) and Guinness Ghana Breweries Limited (GGBL). The opening paragraph reads “Guinness Ghana Breweries Group (GGBL), the nations leading brewer, has unveiled a new advertising campaign and outlook for its leading lager brand, Star Beer”. So what is in a name? GGBG? GGBL? GGL? GBL? GGB? Are they the same? Does GGBG exist at all or is it a very convenient creature in an environment of lax laws and regulation? I would attempt to look at the position of Ghanaian law on business names and related matters. I would also review some corporate actions of the entities involved viewed against the position of the law on the matter. Particular consideration would also be given to corporate actions undertaken in the past and present. Finally, it is hoped that a better understanding of the state of Ghana’s business laws vis-à-vis the issues would be reached ultimately.

The entities that would be focused on are the following:
a. Guinness Ghana Breweries Group (GGBG)
b. Guinness Ghana Breweries Limited (GGBL)
c. Guinness Ghana Limited (GGL)
d. Ghana Breweries Limited (GBL) and
e. Guinness Ghana Breweries (GGB)

The rather vexed issues of what entity actually represents the Guinness empire in Ghana after the controversial takeover in 2004 of Ghana Breweries Limited by the then Guinness Ghana Limited (GGL) refuses to go away. Major issues of corporate law and securities regulation have been raised in respect of actions that were undertaken then by major actors in the securities regulatory framework of Ghana. Presently, Ghanaian lawyers and other securities law practitioners around the globe are eagerly anticipating the ruling of the Ghanaian courts in respect of an application for mandamus, filed by ThinkGhana, a not-for-profit organisation engaged in corporate governance and securities regulatory and related human rights issues in Ghana. The determination of the issues raised in the application by ThinkGhana to compel the Securities and Exchange Commission (SEC) of Ghana to act as any other securities regulator would do in any other jurisdiction should be a defining moment in securities regulation in Ghana. Ghanaian courts have never been confronted with the issues that have been raised in the application but which in many other jurisdictions have become the subject matter of cases pending before law courts. The Economist magazine recently carried an interesting article on the conclusion of the Mittal Steel takeover of Arcelor in Europe. It has been a process that I have keenly followed. Ultimately, shareholders’ interests have prevailed and the Arcelor Board has recognised that in a deal such as was offered by Mittal Steel, the Board of a company can only do as much as they did but can never thwart the legitimate interests of shareholders. But a caveat! That can only happen in an environment where the shareholders are discerning enough and are prepared to stand up for their interests. In Ghana, where the majority of our shareholders seem to have no clue as to what pertains in the company let alone appreciate a sophisticated process such as a takeover, and the few discerning shareholders refuse to act, it is expected that the securities regulator will act to protect shareholder interests. It is anticipated therefore that a definitive ruling by the High Court of Ghana will finally bring Ghana into the comity of nations where securities regulation is upheld and corporate governance is central to the economies of those nations concerned. We will keep the world posted on developments.

The Facts
In December 2004, an announcement was issued through the Ghana Stock Exchange (GSE) to the effect that Diageo Plc and Heineken International, the parent companies of GGL and GBL respectively were in negotiations with a view to a takeover of GBL by GGL. Diageo and Heineken are major multinational breweries based in London and Amsterdam respectively. The takeover arrangement was to the effect that after completion, GGL will proceed to merge its assets with GBL and then form an entity to be called Guinness Ghana Breweries Limited (GGBL). However, before the process of takeover had been completed, GGL changed its name into that of the intended merged entity, GGBL. Thus ultimately, GGBL acquired 99.7% of GBL and in December 2004, assumed control of the company. A lot of corporate communication then followed, some to the GSE itself and a lot in newspapers which seemed to portray GGBL as the merged entity. No efforts were made to disabuse the minds of investors and Ghanaians that GGBL was just the old GGL which had changed its name and was not the merged entity. Indeed, at all times, GBL still existed but had conveniently been lost in the scheme of things. The corporate law issues became a lot more interesting when GGBL launched a new corporate logo and name of a new entity, GGBG and marketed it again as if it was the merged entity arising out of a merger of GBL and GGBL. The defining moment came when the entity GGBG was used to convene GGBL’s Annual General Meeting scheduled for December 12, 2005 as being in breach of the statutory provisions of the Companies Code, 1963, (Act 179). On the Annual Report issued for the Annual General Meeting of GGBL for year 2005, GGBG described itself as “Ghana’s most celebrated company”. Could this be legitimately done under Ghanaian law? The writer of this article was privileged to have been counsel for a shareholder of GGBL who challenged the actions of the directors and sought to restrain them from proceeding with the AGM from continuing to use the business name Guinness Ghana Breweries Group without registration as being in breach of Act 179 and the Registration of Business Names Act, 1962 (Act 151). The application was dismissed because the High Court was of the opinion that on a balance of convenience, the AGM ought to go ahead. Having carefully reviewed the entire matter, I am of the humble opinion that the Court erred. However, we are disabled from proceeding with an appeal as the client is not interested in pursuing the particular matter especially as the AGM has taken place. This exercise is to put the issues across and to invite opinions on the subject to enable us all help develop Ghana’s jurisprudence a little more.


It was the Applicant’s case that the Annual Report and the subsequent communication received by the shareholders of GGBL did not fulfil the requirements of the Ghanaian Companies Code as it was from an entity unknown to the shareholders of GGBL and was also not known to law in Ghana. It was further contended that the said Annual Report and subsequent communication received as purported notice of the Annual General Meeting of GGBL could not be deemed as proper in law as it emanated from an unregistered entity, GGBG and not GGBL.

A writ was issued against GGBL on October 28, 2005 further to which an application for interim injunction against an Annual General Meeting to be held in Kumasi on November 8, 2005 on the basis that that the notices were in breach of the statutory provisions of the Companies Code, 1963, (Act 179) was also filed. This was because though notices had been placed in the Ghanaian national dailies to the effect that GGBL was to hold its AGM on the declared date, the requisite documents under law were still not forthcoming. When a check at the Registrars of GGBL revealed that the Annual Reports were being packaged at a date much later than stipulated in Act 179, an application was filed to halt the said meeting. The High Court on November 4, 2005 refused the application but awarded costs because GGBL had two days prior to the hearing, placed adverts in the national newspapers postponing the Annual General Meeting. At all material times, the Applicant had still not received his copy of the Annual Report.

Much later, a package postmarked October 28, 2005 containing an Annual Report and an Admission card was received from an entity known as Guinness Ghana Breweries Group, referred to as “Ghana’s most celebrated company”. The reference on the said Annual Report was to “Ghana’s most celebrated company”. Later, another mail was delivered containing a letter purporting to be from GGBG containing an amended notice and admission card. Both documents emanated from a company unknown to the Applicant and all shareholders of GGBL except the majority shareholders and the directors. This new entity was also unknown to the Registrar of Companies in Ghana and virtually non-existent under Ghanaian law. Searches at the Registrar of Companies conducted by this writer revealed that GGBG was an unregistered entity at all material times when these actions complained of were being undertaken.

The caption “Guinness Ghana Breweries Group, Ghana’s most celebrated company” had been used in the media and on all the publications of GGBL nationwide when the directors were fully aware that no such entity existed in law and in fact. Intriguingly, the annual report itself also read the same: “GGBG, Ghana’s most celebrated company”! For this writer, one of the more intriguing features of the particular issue under discussion was when after service of the writ and having belatedly realized their mistake, the Directors of GGBL changed the caption from “Guinness Ghana Breweries Group, Ghana’s most celebrated company” to “Guinness Ghana Breweries Group, Ghana’s most celebrated business”. Is that an admission that no such company called GGBG existed?





The Law, (As I see It):

Is GGBG a company in the eyes of the law? Could it legitimately be called the parent company of GGBL? Is it a holding company? Is GGBL a subsidiary of GGBG? Can the Directors of GGBL summon a shareholders meeting of GGBL on the letterheads of GGBG with a different logo and named directors, events which are completely unknown and unapproved, by shareholders? What is the position of the law in Ghana on these matters?

It is instructive to determine the structure of the entities in play. As alluded to earlier, in December 2003, the parent companies of Ghana Breweries Limited (GBL) and Guinness Ghana Limited (GGL), Heineken International of Holland and Diageo Plc of Great Britain respectively, announced through the Ghana Stock Exchange (GSE) that they were in talks to merge the two businesses with the approval of both parents. The very next day, another announcement was made through the GSE to the effect that the talks had been successful and that an offer would be made by GGL to acquire GBL. The objective was to form a new merged entity to be called Guinness Ghana Breweries Limited. However, before the merger could be consummated, Guinness Ghana Limited changed its name into the intended merged entity and became GGBL. Instead of the directors communicating that GGBL was in fact the old GGL without more, for reasons best known to the directors, it has consistently put out in the media, information to the effect that there had been a merger and that GGBL represented the new merged entity.

It is my humble submission that the original holders of GBL shares, who accepted GGBL shares as part of the takeover deal, exchanged their shares for GGBL shares based on commitments in the circulars underpinning the acquisition that the objective was to merge the two entities. The press releases issued through the GSE and sanctioned by the SEC were all to the effect that the objective was to merge the two entities. Those shareholders to all intents and purposes, therefore invested in the entity called GGBL, which has a defined mark, the harp, with a defined board of directors.

It is my contention that due to difficulties being encountered by GGBL in turning GBL into a 100% owned subsidiary, it has adopted a business approach that flies in the face of law and its commitments to securities regulators concerning the proposed merger of GBL and GGL to form GGBL. The parent company of GBL is therefore GGBL. GGBL, by owning 99.7% of GBL is its holding company. It is further submitted that the entity, GGBG, which the directors have promoted as if it was the holding company of both GGBL and GBL is a non-existent creature of the Board and cannot be allowed by law to be used to perpetuate an illegality on shareholders of GGBL. The continued use of the entity GGBG, is to signal the perpetuation of a situation where there has been a merger in fact but not in law, seemingly endorsed by the securities regulator and the GSE, which situation avoids all the undertakings in the communication to the investing public in the lead up to the takeover and may also have major tax implications for the Republic of Ghana.



Section 1 of the Registration of Business Names Act, 1962 (Act 151) reads in part as follows:
(1) Subject to the provisions of subsection (2) of this section, there shall be registered in accordance with the provisions of this Act the following persons, that is to say
(b) every company carrying on business in Ghana under a business name which does not consist of its corporate name without any addition.

(2) Registration shall not be necessary
(a) where the addition referred to in subsection (1) of this section merely indicates that the business is carried on in succession to a former owner of the business;
(b) where the business is carried on by a receiver or manager appointed by a court of competent jurisdiction.

Act 151 defines “business name” as “the name or style under which any business is carried on whether in partnership or otherwise”.

GGBL has always contended that GGBG is a business name but it is only generic. The fundamental question therefore is whether GGBG is just a phantom creation or it is a company? Can there be a concept of generic name under Ghana’s business laws?

It is respectfully submitted that Ghana’s Companies Code of 1963, (Act 179) would have to be complied with in order for a company to be incorporated. According to section 8 of Act 179, “any one or more persons may form an incorporated company by complying with the provisions of in respect of registration”. The manner of formation is provided in section 14 where proposed regulations satisfactory to the Registrar of Companies must be provided and approved. The Registrar then certifies under his seal that the company is registered. Instructively, section 14 (c) provides that “from the date of registration mentioned in the certificate of incorporation, the company shall be a body corporate by the name contained in the Regulations” and subject to receipt of the certificate to commence business, “be capable forthwith of exercising all the functions of an incorporated company”.

However, it is submitted that GGBG clearly does not exist!

The First Schedule to Act 179 defines “subsidiary” and holding company” as follows:
“A body corporate shall be the subsidiary of another and that other shall be its holding company if,
(a) that other body corporate by the exercise of some power directly or indirectly vested in it, whether by virtue of the beneficial ownership of shares or otherwise, can appoint or remove or procure the appointment or removal of all or not less than half of its directors for the time being or can prevent the appointment or removal of all or not less than half of its directors:
Provided that,
(i) a power exercisable in a fiduciary capacity for another person shall be treated as exercisable by that other and not by the fiduciary;
(ii) a power exercisable by virtue of shares held by way of security only for the
purpose of a transaction entered into in the ordinary course of business of that other body corporate shall be disregarded;
(iii) a body corporate shall be deemed to have power to appoint a director or
another body corporate if any person’s appointment as director of that other body corporate necessarily follows from his appointment as director or other officer of that first named body corporate; or
(b) it is a subsidiary of any body corporate which is that other’s subsidiary”.

Under Ghanaian law therefore, GGBL is the holding company of GBL, and not GGBG.

The Group Enterprise

It is respectfully submitted, that the relevant section for a determination as to whether directors of a company can unilaterally use another name and another mark and create a mirror image of a holding company and hold itself out as such for the purposes of marketing itself, to the extent of calling AGMs in the name of the new entity can be determined under section 127 of Act 179. Group Accounts!

I wish to set out the relevant provisions in extenso:

Section 127 (1) of the Ghana’s Companies Code states that “the provisions of this section shall apply where at the end of the company’s financial year, a company has subsidiaries.

(2)Accounts and statements dealing, as hereinafter mentioned, with the profit or
loss and the state of affairs of the company and the subsidiaries, in this Code called
group accounts, shall … be sent to the members and debenture holders of the
company with the company’s own profit and loss account and balance sheet
pursuant to section 124 of this Code”.

(4) Subject to subsection 5 of this section, the group accounts shall be consolidated accounts comprising
(a) a consolidated profit and loss account dealing with the profit or loss of the company and all subsidiaries to be dealt with in the group accounts;
(b) a consolidated balance sheet dealing with the state of the affairs of the company and those subsidiaries

(5) If the company’s directors are of the opinion that it is better for the purposes of presenting the same or equivalent information in a form which may be more readily appreciated by the members and debenture holders, the group accounts may be prepared in a form other than that required by subsection (4) of this section and in particular, may consist of more than one set of consolidated accounts dealing respectively with the company and various groups of subsidiaries or of separate accounts, dealing with each of the subsidiaries, attached to the company’s accounts of statements expanding the information about the subsidiaries in the company’s own accounts or any combination of those forms.

(6) The group profit and loss account may be wholly or partly incorporated in the company’s own profit and loss account and a consolidated profit and loss account dealing with the company and all or any of its subsidiaries shall be deemed to be a profit and loss account of the company… so long as it complies with the requirements of this section and shows how much of the consolidated profit or loss for the financial year is dealt with in the accounts of the company.

(7) The group accounts shall give a true and fair view of the profit or loss and of the state of affairs of the company and the subsidiaries dealt with thereby as a whole, so far as concerns the interests of the company.”

It is obvious from section 127 of Act 179 that the provision is strictly an accounting-purpose only provision. It is important to note that the obligations under section 127 financial reporting regimes are placed firmly on the holding company itself. In this case, GGBL. Nowhere in the legislation does it state nor imply that a commensurate right arises to use a new name and a new logo to take care of the business of the entity as if a holding company has been established for the purpose.

Indeed, Prof. Gower, in the “Final Report of the Commission of Enquiry Into The Working And Administration of the Present Company Law of Ghana” (popularly called the Gower Report), states that the relationship between a holding company (GGBL) and subsidiary (GBL) is defined in the First Schedule to the Code. According to Prof. Gower, “it is universally recognized that, where this relationship is established, the accounts of the holding company alone may give a misleading impression if those of the subsidiaries are ignored. The best way of avoiding this possibility is to provide for group accounts, normally in consolidated form…” (Emphasis mine). It is therefore obvious that it is the entity GGBL, which further to the acquisition of GBL, in presenting its financial statements, ought to provide a consolidated account to reflect the group earnings. The law does not give the holding company any inherent right to establish a new entity with a defined corporate logo and to the effect that it is the holding company of the holding company, without complying with Act 151!

Again, Farrar’s Company Law, 3rd Edition (published by Butterworths) illustrates the manner in which groups may occur. According to Prof. John Farrar, groups arise in different ways. Firstly, they may be founded as such. A company is incorporated to carry on business as a holding company and then proceeds to incorporate trading subsidiaries. Secondly, a company which is a trading company may grow and convert itself into a holding company, later hiving down its trading activities into subsidiaries. Finally, according to Prof. John Farrar, a group relationship may arise as a result of a takeover. One company takes over another which then becomes its subsidiary when its shares have been acquired by the first company.

It is respectfully submitted that the third model of Prof. John Farrar represents the present case under discussion. GGL took over GBL and renamed itself GGBL. That’s how GBL becomes its subsidiary. Indeed, Prof. Farrar states succinctly that” there are various reasons why the subsidiaries are kept in business. The bidder will wish to preserve the goodwill of the business. There are costs involved in transferring the actual business. The subsidiary may constitute a convenient unit of management or accounting within the group”.

What therefore may motivate a major subsidiary of a multinational, having committed to a merger based on which investments decisions had been made by Ghanaian citizens, to decide to create a mirage for the purposes of keeping a subsidiary in business? Is it the costs of transferring the business?

GGBG, fact or fiction?
Is GGBG really a company properly so-called? What is a company supposed to do under Ghanaian law to be properly so-called? I submit that under Ghanaian law, it must have a name. GGBG is a name! It must have a registered address and office. Under law, a company must also have a board of directors. A close check of the latest Annual Report of GGBG and the list of directors displayed therein make interesting reading. Originally also, official communication from GGBG displayed a list of directors at the bottom as warranted of all companies. That is until it was realized that continuing to issue those letterheads will give the story away. A company must also have a management. Official communication seems to imply that GGBG has a management. Finally, a company properly so-called must also have a letterhead with directors displayed which it uses to communicate officially. GGBG has that. Where it so desires, a company must also have a mark to identify itself. It must be noted that GGBL’s corporate logo is the harp, ably defended by Mr. Michael Power, as against two interlocking Gs which is the supposed corporate logo of GGBG.

All communication so far accessed by this writer as emanating from GGBG has clearly stated office address. The only distinction is that whilst at first, no effort was made at distinguishing between the two entities supposedly now under the umbrella of GGBG, the new letterheads of GGBG seem to show that. There is now in circulation in Ghana, letters emanating from GGBG without more. This letterhead shows no directors and gives no fixed address yet corporate actions have been taken based on such communication. Then there is a letterhead boldly showing GGBG but with an address showing that of GGBL. This letterhead shows a list of distinguished personalities as the directors. It is as yet unclear whether they hold themselves out as directors of GGBG or GGBL. The said letterhead with the GGBL sub-address has at the bottom this statement: “Ghana Breweries Limited and Guinness Ghana Breweries Limited are members of the Guinness Ghana Group of Companies”. This writer is yet to see the same type of letterhead by GGBG but this time showing an address of GBL. Perhaps it exists. Perhaps not. If another letterhead exists showing GBL’s address, it may signal an admission that GGBG does not exist. Interestingly, at the same time all these new letterheads had been designed and were being used for corporate actions, GBL was also communicating on its old letterhead with its own logo. The fact of the newly designed letterheads of GGBG with a GGBL address and directors listed and the statement thereon is a reflection of the sensibilities after issues had been raised about the legality or otherwise of those actions. The situation therefore warranted the same efforts that moved GGBG from a celebrated company to a celebrated business.

GGBG=GGBL? The matrix unravelled
Is GGBG therefore just a mere generic name as claimed by GGBL? The Concise Oxford Dictionary, 9th Edition defines generic as follows: “characteristic of or relating to a class; general, not specific or special; (of goods, esp. a drug) having no brand name; not protected by a registered trade mark”. The Annual Report that was allegedly forwarded by GGBL for 2005 has emblazoned on it “Guinness Ghana Breweries Group”. There is also prominently displayed, the new logo of the new company. Such a smokescreen deliberately created by directors cannot be allowed to stand under Ghana law. GGBG has clearly marketed itself as “Ghana’s most celebrated company”. There is a list of members of a board of directors not under GGBL’s logo or name but clearly under that of GGBG! Is that also generic? Certainly not! The belated attempt to re-brand GGBG as “Ghana’s most celebrated business” after attention has been drawn to the breaches of law does not cure the illegality and the willful mis-information being undertaken by the Directors of GGBL.

It is respectfully submitted that under Ghanaian corporate law, business names and names of any corporate entities must be registered, irrespective of whether it is holding company or group name or generic name. The concept of a generic name is alien and unknown to Ghanaian law and has great potential to create chaos on the Ghanaian corporate scene. The only instance where registration does not become an issue is when the holding company itself, in its accounts, shows the group accounts.

The entire “GGBG Project” is a calculated attempt by a very respectable firm to bamboozle its shareholders, GBL shareholders, GBL employees, the securities regulators, the investing public and indeed the entire nation. It is a matter of record that during the acquisition of GBL in December 2004, a shareholder of GBL sued the company for inter alia, the production of a valuation report to determine the fairness or otherwise of the offer price of the deal. As soon as the ruling was made by the High Court for the production of the valuation report, GGBL quickly reached a settlement with the said shareholder and the matter was withdrawn from the Courts. The valuation report underpinning the said acquisition project which led to the present structure where GGBL has become the holding company of GBL was therefore never disclosed, even in the face of securities regulations which warranted such disclosures. The securities regulators despite provisions to the contrary, neither demanded nor were they given a copy of the valuation report underpinning the offer.

In the event that the merger must proceed pursuant to the commitments in the offer circulars, GGBL would have to value the assets of GBL again in order to determine a fair value for the rest of the shareholders. However in the event that the valuation report discloses a far higher value than that given to shareholders of GBL under the acquisition deal, GGBL may have to pay all the rest of GBL shareholders a top-up. In the circumstances, it may be understandable that a an artificial situation has been created to give a semblance of a merger having taken place when in fact nothing of the sort has occurred in order to delay the process for as long as possible.
In the intervening period, the majority shareholder alone, GGBL has moved and against all legal norms, physically taken over the assets of GBL and benefits alone from sweating the subsidiary’s assets to the detriment of the remaining shareholders of GBL. With the assets of GBL completely fudged, the possibility of major litigation from GGBL’s actions is very real and high. It also becomes near impossible to make a fair determination of GBL’s assets and that is critical for tax purposes. The present artificial situation also jeopardizes the legal rights of all employees of GBL. Due to the arrangements, GBL employees have been unilaterally transferred to GGBL. Their service contracts have also been altered. Poor Ghanaian workers who would have been entitled to redundancy pay under Ghanaian law if regulators were awake are now losing their jobs, having been fired by an entity that did not employ them in the first place. There are therefore major legal implications of the present artificial maze created for the State, securities regulators, GBL employees, labour regulators and the tax authorities. GGBL must therefore be encouraged to do the right thing in order to protect the investment of all GBL shareholders and the reputation of the company. As so succinctly put by Prof. John Farrar in his book, quoted hereinbefore, “ a holding company, while the owner of whole or part of the share capital of a subsidiary, is not regarded as the owner of the assets of the subsidiary in the absence of an express agency or trust relationship”.

The actions of the directors of GGBL may not be without precedent. In 1987, during the takeover of Distillers Plc, a company in the United Kingdom by Guinness Plc, the Chairman of Guinness, Ernest Saunders and 3 others executives were jailed for various infractions of the law which only came to light only after the acquisition. Diageo Plc, being the parent company of GGBL, is fully aware that in its home country, an investigation would have been launched into the circumstances of the acquisition and the actions of the directors following the acquisition. In the light of the Enron, WorldCom and other recent corporate scandals, and the fact that corporate governance is absolutely critical to assuring value for all shareholders, the directors ought to be made to abide by Ghanaian law to ensure that the interests of the shareholders and indeed all Ghanaians, particularly the poor employees of GBL who keep inundating the writer with their problems but are sadly too petrified in their own homeland to speak for their rights when it is been infringed by an entity that would not be able to do the same things in its home country.

Can GGBG therefore do acts in the name of GGBL? It is my contention that an Annual Report for the purposes of an AGM must come directly from the company concerned. The Annual Report and notices for the AGM of GGBL for 2005 ought therefore to have come from GGBL and not GGBG, especially when checks at the Registrar-General’s Dept. showed that GGBG was an unregistered entity. Ghana’s Company Code provisions that allow a company with subsidiaries to provide in its financial reporting, consolidated accounts cannot by any stretch of the imagination be interpreted as tantamount to a fiat to use an unregistered business name and a logo in order to summon a general meeting. GGBL is fully aware of all these actions and yet has taken a very unprincipled stand in achieving its corporate objectives at the risk of endangering the investments of poor Ghanaians in the entity. These concerns are heightened by the manner in which the resolutions to approve the merger were rammed past shareholders in 2004 to benefit the majority shareholder, Diageo Plc, at the expense of ordinary Ghanaian shareholders. Diageo Plc benefited from a placement of shares solely to itself at a whopping 136% discount but managed to get gullible Ghanaian shareholders to waive their rights to same. This was done in order to assure Diageo Plc, a continued majority stake in GGBL. However the “control premium” which it would have paid to the company in any other jurisdiction including its home country was conveniently lost. Meanwhile as disclosed by GGBL itself in the circulars, the acquisition of GBL itself was not done through foreign inflows. GBL was bought by GGBL through loans sourced from local banks. That means that all investors in GGBL would share the burden of that investment but the primary beneficiary at all times may be Diageo Plc, Heineken International B.V. and a few other institutional investors. Whilst dividends are being declared for GGBL, none has so far been declared for GBL. Indeed, GBL had always been conveniently buried until it became increasingly untenable to continue along that line and therefore AGMs for GBL were finally held in the past few months. Interestingly, two AGMs were held at the same time in another flagrant abuse of Ghanaian corporate law. All these actions were taken after articles had appeared in Ghanaian newspapers authored by as yet unidentified people to the effect that GBL and GGL had merged to form GGBL, a basic untruth and falsehood. Interestingly, neither GGBL itself nor the SEC of Ghana nor indeed the GSE have found it necessary to correct that falsehood. Under Ghana’s securities ;laws, an immediate duty arose firstly on the writer, and on GGBL, GSE and the SEC itself to make a statement to the effect that it was incorrect to state that GBL and GGL have merged to form GGBL. It is a very sad testament to the state of Ghana’s securities regulation when the securities regulator itself, also peddles this basic untruth, which is a breach of Ghana’s securities laws, in official communication.

An interesting example of what seems to be a campaign of misinformation is a press release by GGBL through the Ghana Stock Exchange. It is the unaudited results for the nine months ended March 31, 2005. In spite of the oath sworn by the directors of the company, they proceeded to mis-inform the investing public by stating as follows:

“1. Merger
The performance of “GGBL Group” includes four months profit of Ghana Breweries Ltd., following the merger between the two companies on December 1, 2004”. (Emphasis mine).

This statement is false in material particular! There has been no merger between the two companies yet! It is also instructive to note that in this reporting to the regulator, it is coming from GGBL and not GGBG. GGBL’s mark is therefore prominently displayed as the HARP. The name of the company is also displayed. The entity in question at all times is GGBL. From whence cometh the GGBG? It is therefore submitted that the said GSE press release, apart from the false information therein displayed, is the more accurate format for GGBL to make its financial report.

The Daily Graphic newspaper, respected as it is, may have also been an unwitting purveyor of the GGBG falsehood sometime last year. At the launch of this phantom creation called GGBG, the entire Ghanaian public was hoodwinked into believing that they were seeing the parent company of GBL or at best that of the two entities. In fact, it was categorically stated that the actions in structuring the new company was further to the merger of GBL and GGBL. Juxtaposed against the printed statement of the Chairman of the Board of GGBG to the effect that they are still working on achieving a merger, investors are left wondering what the directors are communicating. Indeed, Mr. Nicholas Bodo Blazquez is described as Chairman of the Board of GGBG in the Annual Report issued for the AGM 2005! How can a generic name have a board? That would seem to suggest that all the persons listed thereunder are also members of the said Board. Unless GGBG is an incorporated entity, it is absolutely unclear what the intention is. The Chairman of GBL is Mr. Devlin Hainsworth. The Chairman of GGBL is Mr. Blasquez. The Chairman of GBL is the Vice- Chairman of GGBL but he is the MD of the two entities. Mr. Devlin Hainsworth was duly appointed at different times by the separate boards of the two entities as provided under law. Has GGBL changed its name into GGBG? Why then has the said change of name not been registered with the Registrar of Companies? Can a harp and a name be automatically exchanged at will by directors for two interlocking Gs and a different name? Is your head swimming? I hope not as we all need to clear our heads in order to appreciate what is happening in today’s Corporate Ghana.

Conclusion

Indeed, to my mind, the situation is very simple. What should happen under Ghanaian corporate law is that when GGBL is to have its AGM, it should forward all legitimate documents to its shareholders. This cannot be legitimately done by GGBG, an unregistered, uncertificated, unlicensed, creation of the directors for an as yet undisclosed purpose. In the event that it is the case, notices must be sent to GGBG shareholders of whom the writer is unaware. In the real world, GGBL has only one subsidiary, GBL. With GGBL’s vast resources and excellent corporate secretarial and legal support services, the rationale for the artificial legal maze being created is to say the least baffling. The fact of GBL as the sole subsidiary is even meant to be transitional. All communication during the acquisition to the investing public and to the securities regulators was to the effect that there will be a merger with GBL. The creation of this white elephant, GGBG, is therefore in my opinion after having carefully considered the law on the subject, illegal and potentially litigious and if the Ghanaian stock market was efficient, could potentially lead to unpleasant situations for all concerned.

Respectfully, if any corporate entity in Ghana, with a single subsidiary, reserved the
right to use a “generic name” with a logo in Ghana without registration, and proceed to
issue corporate communication using that name and logo, it is an invitation to chaos.
The directors of GGBL should be called to order such that general meetings and other
corporate events are summoned by GGBL itself, not GGBG, styling themselves under a
different name and logo, unknown to law and to shareholders. It is also respectfully
submitted that even in the United Kingdom itself where Diageo Plc is based, it will be
held to account as the DTI showed in the Distillers Plc Case. The directors of GGBL
should refrain from using the business name, GGBG, pending confirmation of fulfillment
of the due legal processes by registration. Further, Annual Reports and the notices of
GGBL cannot purport to emanate from GGBG and therefore cannot be claimed as
satisfying relevant Code provisions on AGMs. Finally, GBL employees are not obliged to
accept service contracts offered by GGBL as it is an entirely separate legal entity and
effectively truncates the old service contract with GBL. Ghanaian law makes it amply
clear that there are costs to acquisition. Where an entity is not ready to pay the costs,
our citizens should not lose their benefits through a very clever scheme that seeks to
avoid the making of a “redundancy payment” to citizens who have toiled from the days
of the late Siaw till date. It is proposed that the present government ought to show a
little interest in the rights of our citizens especially in matters such as these. When GBL
workers are coerced to make the transition to GGBL, and then they are likely to be
terminated with GGBL seeking to rely on notice to avoid its duties under law. For the
workers of GBL, if any do exist by now, remember, “vigilantibus non dormientibus
servient leges” . This means that laws serve those who are vigilant, not those who
sleep!

It is only then that the long-suffering Ghanaian shareholders, employees and other trade partners of GGBL and GBL would be saved from deciphering the legal nexus between Guinness Ghana Breweries Group, (GGBG, Ghana’s most celebrated company) and lately, Ghana’s most celebrated business; Guinness Ghana Breweries Limited, (GGBL), Guinness Ghana Breweries Limited Group (GGBL Group), Guinness Ghana Breweries (GGB) and Ghana Breweries Limited (GBL).

“Quid faciat leges, ubi sola pecunia regnat” - Petronius.
“What may laws do where only money reigns”.

God Bless Our Homeland, Ghana!

JOE ABOAGYE DEBRAH Esq.

P/S: The writer is the former Company Secretary/Legal Adviser of GBL. The article has been inspired by the numerous pleas for help being received from employees of GBL, past and present, arising from breaches of undertakings by both Heineken International, the former majority shareholder of GBL and the former Board and management of GBL to defend the interests of their employees. It has also been inspired by the writer’s own personal experiences, particularly since he exited GBL in June 2005. This piece is also dedicated to my manager, Adwoa Gyekyewaa, who makes it possible to live with my boys through a period when real character has shown through brightly, and cowards have fled yonder.

It is indeed a sad thing when we say in Ghana that we are independent and indeed have been for 50 years and yet, in the land of our birth, where our umbilical cords are buried, foreigners can abuse the rights of Ghanaians with impunity and the Ghanaian is either too afraid to stand up, or too impoverished to fight or too discouraged to fight or just too timid to stand up and be counted in his own land or the protective arms have been appropriated by non-nationals. The independence of Ghana is meaningless unless it is linked with the total liberation of all Ghanaian citizens in the land of their birth!!!

So Help Me God!!!

Tuesday, July 18, 2006

Letter To Van Boxmeer, Executive Chairman of Heineken International

JOE ABOAGYE DEBRAH LLM (Lond.)
BARRISTER-AT-LAW
1ST Law Tel: 00-233-21-253751
#28/1 Castle Rd., Adabraka 00-233-20-8157566
P. O. Box GP115 00-233-24-4293270
Accra E-mail: joe_debrah@yahoo.co.uk

October 5, 2005

Mr. Jean-Francois van Boxmeer
Chairman
Executive Board
Heineken International
Amsterdam.

Dear Mr. van Boxmeer,

TREATMENT OF MANAGEMENT PERSONNEL OF GHANA BREWERIES LIMITED (GBL) FOLLOWING ACQUISITION BY GUINNESS GHANA BREWERIES LIMITED (GGBL) –OPEN LETTER TO HEINEKEN

I take the opportunity to draw your attention to certain events that have occurred in your former OpCo in Ghana, GBL, following Heineken’s sale of its interests to Diageo Plc’s subsidiary in Ghana, GGBL in 2004.

I do so fully cognizant of your new role as the Chairman of the Executive Board of Heineken International. I wish to extend my congratulations. I have elected to write to you and make same available to all the relevant people involved in this matter primarily due to the fact that you have a personal responsibility to ensure that justice is done to all the personnel of GBL in the wake of the takeover. This communication is also premised on the fact that I had a personal encounter with you during my tenure as Company Secretary/Legal Adviser of GBL. You will recall your trip to Ghana to assure all the employees of GBL that the capital restructuring project that GBL was undertaking would resolved all the long-term problems of the Company and assure growth and profitability. This letter is therefore informed in part by the statements that you personally made to us in Ghana juxtaposed with the events that unfolded soon thereafter culminating in the takeover by GGBL.

I have elected also to forward a copy of this communication to the former/present members of the Board of GBL and Mr. Nick Blazquez, Africa Director of Diageo Plc. Let the records show therefore that everyone listed on this communication is privy to all the facts and has elected not to do the right thing by myself and my other management colleagues who have served GBL and Heineken so diligently in their careers but have been abandoned to their fate in the wake of the divestment of Heineken’s interests in GBL.

I wish to take the opportunity to inform you that the National Labour Commission per the attached letter dated October 3, 2005, ruled that my terminal benefits must be paid latest by 0ctober 17, 2005. Critically, it held that my terminal benefits “must be informed by the said agreement of June 9, 2005 which includes gratuity payments to the petitioner”.

Until June 30, 2005, I was the Company Secretary/Legal Adviser of GBL. Further to the divestment of the Heineken stake in GBL, my position was declared redundant. Consequently, together with 9other management personnel, we negotiated an exit package which was duly set down and executed on June 9, 2005. The new management of GBL deliberately chose to interprete the said agreement to the detriment of myself and my management colleagues by deying me the agreed gratuity payments and also miscalculating our pension entitlements. More importantly, someone within the organization decided not to disclose the fact that the yield on our pensions for April, May and June were outstanding. This was never disclosed as part of the package and only acknowledged after the management had been challenged. As a fully qualified Ghanaian barrister, I have been at a loss why two major multinationals, Diageo Plc and Heineken International, would behave in such a manner to infringe the rights of workers when they know they cannot do any of those things in Europe. Is it because in Africa there are no laws to guide corporate actions? I was therefore compelled to file a petition before the legally mandated body in Ghana for the purpose, the National Labour Commission in July 2005. I also decided to hold my official car as a lien against the payment of my entitlements. Most of my colleagues, knowing fully well that their entitlements have been deliberately miscalculated, decided on a safety first approach by taking the offer and suing later for their money. As a lawyer, I could not accept a situation where my employer is fully aware of mistakes and yet openly dares everyone and say, you can decide to go to court if you wish. I could therefore not take any money purporting to be in full settlement of my terminal benefits when in fact it was not. I have therefore not been paid one dime since I exited GBL on June 30, 2005. Having sat in the Boardroom for 4 years and having played a major role in the successful completion of the acquisition process, I am baffled that anyone would elect to treat me this way. Project Marina was marketed to our people as a merger, knowing fully well that this was an acquisition so that the ground would be smoothened for the takeover. The records would clearly show that oat approximately 11 p.m. on June 30, 2005, I was handed a letter signed by Mr. Devlin Hainsworth purporting to detail my entitlements. The said letter was not on a corporate letterhead and contained lots of errors. On July 2, 2005, I wrote to GBL pointing out the errors. About a month later, I received an undated letter which stated inter alia, that I was not entitled to gratuity payments. Strangely, GBL’s answer to my petition attached a letter dated July 4, 2005 also detailing a different amount as my benefits. Characteristically and quite unworthy of a corporate entity of the caliber of Guinness, Mr. Devlin Hainsworth did not sign that letter. The official copy of what the business offered as my terminal benefits was unsigned! I have also till date not received a copy of that letter except the copy I received from the NLC which was the first time I even knew of the existence of another letter on my benefits.

As the custodian of GBL rules and regulations, I would not waste my energies if I was not so entitled under law. I have consequently tried to draw the attention of Mr. Tom de Man who incidentally is a member of the GBL Board and also the GGBL Board and whom I have personally served as Board Secretary to the issues. Till date, none of my communication has ever been acknowledged though I know as a fact that they were received. With all due respect, Sir, I therefore do not expect any response to this. I am too insignificant to Heineken after the disposal of its stake to interest anyone out there. But the records will show that you are fully ware of the facts of this matter. The records will show that Mr. de Man is ware of this. The records will definitely show that the Board of GBL, both pre-acquisition and post-acquisition is fully aware of the facts. Let none therefore plead ignorance. As indicated in an earlier communication to Mr. de Man, the motive underlying a decision for the new owners of GBL to antagonize senior Ghanaian professionals in the land of their birth after such dedicated service, defies my understanding. As always, the so-called advisors, who are laughing all the way to the bank, are the only beneficiaries. He principle of "pacta sunt servanda” means that when an agreement is executed, one is obligated to abide by it. The events of the night of June 30, 2005, when senior managers were hounded out of the business and told to their face to go to court if they wished is the lowest point any entity would sink to. Managers who had dedicated their lives to the business did not even have a handshake as acknowledgement of their role. Rather they were treated worse than criminals. There is therefore a groundswell of ill-will engendered. The mindset of the new owners of the business would definitely cost the business in the long run. What happened to the senior managers could never happen in a place like Nigeria. They would never take such treatment. However the perception that Ghanaians are docile and therefore the Miten Dutias of this world would be brought down from London solely to make savings on the provisions for the redundancy exercise without recourse to their rights would have to be discarded. As a lawyer, living in the land of my birth, with inalienable rights under the Ghanaian Constitution, I am sure you would agree that I would defend my interests. Workers have been offered lower jobs and told to either take them or leave, in contravention of Ghanaian law. The fact that an avalanche of issues has not emanated does not mean that senior personnel like your good self should not be concerned about what’s going on in Ghana and the potential it has to soil the good corporate image of Heineken.

With the ruling of the National Labour Commission, I wish to restate my entitlements as follows, pursuant to the June 9, 2005 agreement:

a. 2 months salary in lieu of notice being ¢15,880,906.63 x 2 = ¢31,761,813.26
b. Full pension payments being ¢40,555,415.81 (contribution) + ¢65,366,056.21 (employer contribution) + ¢78,585,690.95 (yield as at March, 2005) = ¢189,507,163
c. Yield for April, May and June 2005 = to be disclosed and paid
d. Full gratuity @ 12% of annual basic salary being ¢22,868,505.55 x 3.8 = ¢86,900,321.08
e. Outstanding Leave = ¢18,046,485
f. Repatriation Cost = ¢5,000,000
g. 3 months salary for each year served being ¢15,880,906.63 x 3 x 3.8 = ¢181,042,335.6
h. Total = ¢512,258,117.9 + outstanding yield for April-June 2005

Less

i. Total debt to company = ¢177,727,250
j. Net benefit = ¢334,530,867.9 + yield for April-June 2005

It is my expectation that my terminal benefits would be paid fully by Monday October 17, 2005 as directed by the Labour Commission.

Respectfully, Sir, everyone who is privy to this communication cannot allege ignorance. Having rendered dedicated service, the least anyone can do is also to do the right thing by paying what is legitimately due to us under law in Ghana. In the mean time, I shall continue to fight to assure justice for myself and for my colleagues. Indeed, we are establishing a not-for-profit solely dedicated to preventing such hardships befalling our citizens in the land of their birth. We shall employ all legal means necessary to ensure that our rights are not trampled upon in the land where our umbilical cords are buried. I have been to Holland and also lived in the United Kingdom. You have no qualms out there that you are a stranger and you ought to abide by the law. As a lawyer, I wonder why certain personnel posted to Africa believe that the laws have been made for only locals and that they and the entities they run are above the law.

In the light of the foregoing, in the event that my entitlements remain unpaid even after the National Labour Commission’s ruling, I reserve the right to do what is legitimately possible to assure my rights under Ghanaian law.

“If you didn’t know, now you know!” – Reggie Rockstone, a local hiplife artiste.

Yours sincerely,


JOE ABOAGYE DEBRAH Esq.

Cc:
1. Mr. Nick Blazquez 2. GBL Board Members
2. Former GBL Board members
3. Hon. Yaw Osafo-Maafo, MP, Akim Oda

Letter To Tom De Man, Africa Director, Heineken

Dear Mr. Tom de Man,

I write this as a matter of record only.

This communication is further to my previous mails, the first being on the problems arising from the pension scheme since the acquisition of GBL and the second, being communication on what was happening to me and indeed all the direct reports to the former MD of GBL and other defined management personnel who formed part of the first tranche of redundant employees who exited GBL on June 30, 2005. I write this on behalf of all the team of managers who constitute that group and who may not be as privileged as I am either to have the ability to seek that rights under Ghanaian law be respected or even have access to you to send you communication on what is happening to them and their families following the acquisition. Finally, I write this on behalf of myself and my young family and my dear wife who is struggling to come to terms with the fact that I used to come home very late at night from the Golden Tulips of this world during Project Marina and this seems to be my reward. Finally, I have endeavoured to find the emails of as many of the former Board as I can who would receive copies of this mail.

Dear Sir, I do appreciate the fact that you hold a very important position in Heineken International and thus keep a very busy schedule. But I also do know that if you wanted to at the very least acknowledge my communication, you could have done so by now. None of my communication has been acknowledged. I therefore do not expect a response to this. Indeed, as indicated earlier, I am only writing out of a promise I made to my wife on Saturday August 27, 2005 at about 4.45 a.m., when we were on the way to the hospital with my 4 year old boy.

Mr. de Man, I am grieved that I have to once again draw your attention to apparent infringements of the rights of Ghanaian employees since the acquisition of GBL in the new management’s efforts to implement the intended merger of GBL and GGBL. As the former Company Secretary/Legal Adviser, I am privy to information to the fact that some personnel who attended interviews and scored high marks and therefore qualified to be retained (based on the declared policy of ‘best fit’) have not been offered jobs whilst those who did not do too well at the interviews have been given jobs. Further, I have evidence that some senior personnel involved in the selection process had openly declared to defined employees that they could go to court if they were dissatisfied with the jobs they had been offered. Needless to say, the statement to employees to the effect that they could either accept the positions offered or could resign flies in the face of the PTP and communication both from Heineken and GBL’s former Board and Management and even the present Management. More importantly, it flies in the face of Ghanaian legislation. Under the Labour Act, 2003 (Act 651), there are three discernible scenarios in the event of an acquisition:
- retain the jobs
- offer commensurate jobs or higher
- make ‘redundancy pay’.
Impliedly, under Ghanaian law, employees cannot be worse off in a new dispensation unless they elect so to be. Therefore for the new management to invite employees to either take jobs at lower grades or resign or worse, dare people to sue, is to say the least an invitation to assault on the corporate image and integrity of all the corporate entities involved in this matter. In moments like that, it is understanding and empathy that should be shown to employees. In effect, I am alerting you to the fact that the manner in which this exercise has been carried out has the potential to implode on the business.

I wish to point out that as the former Legal Adviser, I was not part of any of the actions undertaken by the new Management. Indeed, since the acquisition on December 10, 2004, the only major function I undertook was to conduct the AGM. I was never invited to nor participated in nor was my opinion sought in any Management issue concerning GBL since December 10, 2004. As a professional, I am fully cognisant of the company’s right to determine who remained in the business. That is why I have never contested the company’s right to declare my position redundant. Indeed, as a professional, I knew as far back as late 2003 when the deal was announced, that in diligently doing my job, I was in the process going to lose my position. Yet I took a conscious decision to do what is professionally expected of me to ensure the success of the acquisition. However, as you may recognise, every acquisition involves assets and liabilities. Employers/employees all have rights and duties. To the best of my abilities therefore, I fulfilled my duties both to GBL under Heineken’s control and under GGBL’s control. I fully recall that at the last Board meeting under Heineken’s control on December 10, 2004, most Board members expressed concerns about the treatment that will be meted out to GBL personnel, especially the senior management team. Assurances were given by the Board and personally by you, Mr. De Man, that the interests of all employees would be protected. Such aspirations informed the decision to allow Mr. Klompenburg and Mrs. Plantenga-Hogewoning to remain on the GBL Board to assure employees. All those assurances run very hollow now compared to what has happened to the senior management personnel of GBL and the fact that these very same people, including myself, are now being compelled to resort to legal means in order to receive what is lawfully ours.

So I take the opportunity to –restate the issues. Agreement was reached with defined managers on June 9, 2005 on exit terms. It was set down in writing and duly executed. Between June 9 and June 30, no communication is forthcoming form management on fine details of the package. Consequently more than three memoranda is forwarded by me to the MD and FD expressing my concerns at the apparent lack of communication on the details of the package and the implications for all. Fortunately, on June 27, 2005, we receive from HRD a detailed breakdown of entitlements based on the June 9, 2005 agreement. By 4. 30 pm on the final day of exit, still n o information is forthcoming. Following persistent calls on me from the other affected managers, I was compelled to see the MD and point out the intolerable unfairness that the situation had generated. Finally, after a heated meeting in the night of June 30, 2005 when the negotiator had disputed the interpretation of “full gratuity payments” despite the word of 10 managers and the witness to the said agreement, we were handed letters on plain sheets and not corporate letter heads purporting to detail terminal benefits. That night, every manager in that room realised that we had been pawns in a master game all along. The motives underlying the decision for the business to antagonise senior professionals who were exiting a company situate in the land of their birth, still defies my understanding. For a business that I have so diligently worked for and supported in a major acquisition project to report me to the Police like a common criminal, that I have stolen a car, when they are fully aware that that is not the case and that my amounts outstanding to be paid as terminal benefits far outweigh the value of the said car is definitive. As the Legal Adviser, we had all participated in marketing the acquisition as a merger and not a takeover in order to soften the ground for the new owners to take over. We are now confronted by a potential legal conundrum where there has been an acquisition but there has not been a merger as anticipated yet. But in the interim, GGBL has moved its personnel and workforce onto the Achimota site. As you are aware, 99.7% means that there is a .3% who still have an interest in the company. They can only be bought out pursuant to a resolution to that effect at an GM called for the purpose. But that’s where the catch is. The potential for Ofori II is real. All it takes is for a shareholder to demand that an independent valuation be done to ascertain their interests. How can that be done when assets have been fudged? We will probably replay all the Ofori scenario again if caution is not exercised.

I can discern that some of the actions undertaken by the new management may be premised on the presumption that it is doing all redundant managers or employees a favour by paying the agreed exit packages. That mindset would inevitably cost the business more in the long-run. Lawyers would smile all the way to the bank. What the new management is being called upon to do is to abide by its legal obligations under Ghanaian law. Management was fully cognisant of the Conditions of Service when it entered into negotiations with the defined group of managers leading to the June 9, 2005 agreement. Under Ghanaian law, where an entity has a legal duty but elects not to fulfil that duty, every Ghanaian citizen has a constitutionally guaranteed right to compel compliance with the obligations. That is what has compelled me to resort to legal means to recover what is lawfully due me as my terminal benefits. And that informs why almost all the managers who were parties to the June 9, 2005 agreement have either filed suits or petitions or are preparing to do so.

But must it come to that when I have sat through Management/Board meetings where assurances had been given that the interests of employees would be protected? The perception of the senior team involved in this matter is that Heineken, having successfully offloaded GBL to Diageo through GGBL is not interested anymore. That position is understandable. Indeed, that may be informing the very loud silence that is coming from Amsterdam on this matter. But for me personally, I feel abused. Used and discarded. But fortunately, I live in the land of my birth. I have lived in foreign lands before. When I travel, I know that I am a foreigner and I do behave as such. I can therefore not accept the fact that in the land of my birth, after having offered dedicated service to the company, someone can decide that your former lawyer and his senior management colleagues deserve to be treated in such a manner, including stooping so low as to issue written directives just a day after June 30, 2005, that defined management personnel should not be allowed to enter GBL premises any longer.

For the past two months, we have toiled to keep the family going. We would continue to do so until justice is done. As a lawyer, I will continue to do what is lawful to assure myself and my colleagues of justice. If Heineken makes a conscious decision that we are pariah at this time, so be it. But I want to assure you that I do not and indeed have encouraged all my colleagues not to hold it against Heineken or the former Board or management of GBL. We will continue to live in this land of our birth. We will continue to take care of our families as long as we have life. We will continue to strive for justice in this matter and justice, though it may tarry, would be done.

I have fulfilled my promise to my dear wife. I just had to let you know that since before June 30, 2005, I have communicated to you on these matters and till date, not even a single note of acknowledgement has been forthcoming. THIS IS FOR THE RECORD ONLY!

Thank you.

Yours sincerely,


JOE ABOAGYE DEBRAH Esq.
Accra.

The Pains of Positive Change - Wo Nkye Ndzi Brass Band

The Pains of Positive Change (Vol. I)
“Wo Nkye Ndzi Brass Band?”

I am amazed at the furore being raised at the news that MPs are going to benefit, nay, are to be bequeathed, nearly 25,000 United States Dollars to buy themselves a nice metallic something, hereinafter referred to as “asetena pa”, otherwise known as a car!

The air is thick with the storm of dust kicked up both in celebration and in protest. Haven’t you heard the news! Well, if you just woke up from a coma, let me refresh your memory.

Whilst you were in your beauty sleep, a new government took over the reigns of power in 2001. We were promised Positive Change. The whole environment was full of optimism. Optimism on the wings of positive change. What else could one ask for? Finally, we were going to have people in government who identified with us, the ‘mmobrowa’. Yes, whilst you were asleep, they looked into the storeroom and recoiled in shock. Ye wu! There was nothing in there! This was the time when the previous people in government had taken beautiful and heavy-laden cargoes at ‘donkomi’ rates. Another uproar! The present people-in-government had (or so they said) no option but to learn to love Oburoni’s World Bank. We were told that we had to make a statutory declaration to change our name. We were told that if we wanted more money when we owed up to our necks, then we had to shout from the mountain tops that we were broke. We must add a name to the one we have or we starve to death! Enter HIPC!

So whilst you were beautifully semi-dead, we voluntarily described ourselves, without fear or favour, as highly indebted and poor. We had tightened our belts aaa for the past ‘kojohoho’ years and the waist was thinner that a pencil. Another tightening? We all agreed that (or so we were? /have been made to believe) all claims legitimate or otherwise, should be put on hold to give our new people in government time enough to settle down and tackle our problems. All for the sake of Ama Ghana!

So all the noise you hear today is not kwaa oo. Omanba has just been informed, (or so we hear) that some of the people in government have, with alacrity and without recourse to past statements, decided that each one of them was entitled to … and this is what I love about it… about 25,000 United States Dollars! Ha ba, where was Dr. Acquah, the Head of State of the Bank of Ghana? Haven’t his people put up that notice everyone from the Oga kwatakwata down to the dog-chain seller ignores? I mean the ‘thou shall not deal in the dollar’ commandment! Have you listened to radio lately? Brilliant arguments by the people in government. Rare occasion to savor bipartisanship on an issue as critical as… cars! Check this out… the only time we see bipartisanship at work is not for the sake of Ama Ghana, but when them brethren and 'sisthren' needed ‘asetena pa’!!! Hear them: ‘don’t you know we need to get in touch with our constituents. Eh, how can I go to my village, to my own constituency to perform the task you have assigned me if you don’t give me a car (ei, did I say a car?) nay, an air-conditioned car (oh no! haa, not only that). As a matter of fact, I need, want, desire, wish, command, should and will get a four-wheeler. That is the only way I can adequately serve my country. After all, I never dreamt …’.

Where’s my MP? Has any one sat down to ask what tools paa our people in government need to perform their functions? In these HIPC times! I was disappointed that Efo ‘Kwabena Dwemoh’ would get them there for questioning and expect them to say…’fa ma nyame! ‘Massa, eye wo aa, nka wo be ka sen? Ei, sika oooo sika! So they argued for their toys! But they forgot that in insisting that they needed that type of ride, they were fundamentally undermining the oga of the Company. Does he also need a fine piece of metal in order to do his job? Spare a thought for the oga kwata wae! The big man has been travelling the world in passenger planes. In these days when a 'panfool' can use his mother’s bread knife to hijack a plane and send it tumbling into someone’s bedroom, do you think its safe for the oga kwata kwata to sit on a passenger plane like that? Imagine what we would be going through if the Oga had entered a Tube Station and boarded some train bound for King’s Cross when he went to UK for the G-8 Summit recently. Tofiakwa! I hear you say! Walahi, if some small fishes need those metals, then the oga deserves better treatment.

Why is anyone surprised that a man will fight for a car so passionately when he doesn’t have a meeting place or an office or research assistants? Hey, atongo, I can work better in space! Why not get them all up there so they can work closer to heaven? Is it a matter of seek ye first the car?

But amanfo, as Antie Efua of ‘Peace Emfem’ would ask, ‘mo haw ne sen? All the noise would end up as nothing. The cars will be bought and the loans taken. At the end of four years, the only people entitled to ESBs in this land will try to … pay? ‘My friend, take it. Don’t you know that it is written at the end of four years, all shall pass… for free?’. Are we a nation they just recycles people who play tunes according to their stations in life? The people shouting no, no, no will do the same when they get to ‘Heaven’.

I pity the oga kwata kwata. How can one bring positive change, (hereinafter referred to as PC)? Now lets talk TOOLS! If we talk tools, Oga will need more fleets of Wabenzis. Oga would need a ship, nay, a submarine. Yea, I like that. A submarine for the Oga! Lets get it for him. You see, he may have to move from Aflao to Axim, calling on all the chiefs along the shores. Oga would need the plane(s) now. He has to go visit our cousins in America, ‘Gyaman’, Japan, Singapore, Libya, Tamale and yes …Yendi! He may even need to attend an independence bash in Sydney with lost brethren. You see Oga needs so many tools ooo! But ask yourself, has he demanded them? If Oga himself has found the political waters not calm enough to demand all the toys that he needs to properly serve his people, then why can’t others realize that it may be a political faux-pas, to come out at this time, to argue so strongly, so passionately for a twenty- five thousand united states dollar ride! No one should belabour the point that the MPs need cars. Oh yes, they do! But you and I need one too! Tools? Remember the doctor in the North who is crying for a 100-dollar equipment in order to save lives? How he has to forgo that tool which is an ‘essenco’. Remember the illustrious sons of the land who recently lost their lives as they all crammed into one vehicle and did not insist on different big rides for each of them or even plane tickets? Remember how we introduce our children into Ogyakrom. If you are lucky, you get to sleep on the floor of the maternity ward of Korle-Bu’ on your first day in this world!!!

So why are you mad? I am smiling all the way home, chuckling to myself! Democracy is good! Pluralism is good! Open/free media is good! Open government is good! In fact PC is the best thing to happen down south since ‘ebunebun and nwa’.

Want to know the PC in this wahala? Gradually our people will get to know, that the only way to get out of these situations when omanba feels a deep sense of … oh come on, admit it .…’skin pain’ is that, collectively as a nation, we’d decide to get out of the mess we are in. Believe me, the ‘hullaboutwho’ is because we know (or so we have been told) that there is nothing in our coffers. And that explains why the poor worker who needs tools to perform has decided not to demand his pound of … tools!. Imagine the chaos if the TUC also says the workers’ tools are the better pay and the ESB. “Without that, we cannot perform”. What a Ghana that will be! So amanfo, take my advice and don’t get worked up too much on this. In fact, listening to Prof. Akosa, you may be harming your already weak body getting worked up unless one of the metallic stuff is ending your way. Just make sure you place yourself in a position to get there too, because until we ain’t HIPC’d, this is a ritual we’d perform every four years. Newsflash! Now even land is to be added!!!!

So MPs, buy your cars. I beg, get the four-wheelers, eh! The big ones! After all what! In fact your job demands that you get the best cars! If there is no money, you obviously wouldn’t ask for the new toy! There’s money”! As for HIPC, it’s all in the mind! Where there’s a will, there is a way!. If you doubted the will of MPs to get the car, it surely should wilt when you hear bipartisan arguments on the issue of cars. But after you get it, just brace yourself. Because if you don’t…. Well, I think you know but you don’t give a damn! “Oman no enye obiara dia! Pandora’s Box? We live to see! All shall come and All shall not be prepared to listen to all that jabass about HIPC, no money, twen kakra etc.

In the mean, ‘akpe’ for showing that in the midst of HIPC, we are strong enough to get these fine beauties for you guys. I leave for home, humming coolly to myself. Thanks for a welcome diversion from the Osama and al-qaeda nonsense bombs!

Hei, keep the faith! PC is here to stay! The longer we do this, the better we would all be in the years to come. Tighten the belt and keep praying that either you or a close relative becomes an MP soon. The beautiful ones are not yet born! Good times are yet to come. Who knows, next time we may be doling out private jets. Have you so soon forgotten that ‘ade pa nyinaa hye….aseeho?

Me ma mo akwaaba! Welcome to the real world.

Postscript:

This piece was written in the wake of the news that cars were to be bought for the MPs but was not published due to other engagements. The archives were searched and the piece resurrected after I encountered two recent events: watching on TV, Ghana conducting an induction ceremony for new-born babies through the floor of the Korle Bu Maternity wards and listening to another consensus developing on radio in respecting of Ghana’s land and money which is to be offered to….yea, you guessed right! Politricians!!!. This is published for what’s its worth!

I have since heard some say they would not vote again. Ha ba, this small thing! This is the beauty of PC. Right now the PC is our ability to mouth our protestations. As we keep developing, the PC will be our MPs and other politicians prepared to sacrifice small bii for the sake of mother Ghana. Why do we always have to fill our belly before we can show our patriotism? I would rest easy only when the national coffers are so full that when we hear such news, we can ask, ‘aaa, na ketewa wei nkoa na omu tumi di ma won? Yen fa epo nso nka won ho!!!!

PC is real! There is so much to say. But there just ain’t enough to get one’s thought on paper. Like Okomfo, the rap singer in his hit Kwadee, ‘mer toa so!



Joe Aboagye Debrah Esq.
Legal Practitioner
Accra
JD210905

Oye Nonsense

OYÉ NONSENSE!!!

Every day, these days, I dread my early morning hours. I dread what my radio will throw at me as soon as I open it. I dread what the newspapers will deliver as fodder for my brains in the morning. Why the dread? You can bet your last bottom dollar that it is almost always a cacophony of ‘nonsense things’ multiplied by scale factor hundred! Stuff that we could very well do without but which all of us as a nation are gradually being weaned on. We have become addicted to the nonsense-things’ or what? By the way, who sets the agenda for us? Government? NDC? Radio journalists? Print media?

Admit it. Consciously or unconsciously, we are gradually as a nation, settling for the mediocre and accepting things that ought not to be accepted. Or is that to credit the Ghanaian with too much? Okay, at the very least, lets question before we accept all the things that are being poured down our throats. After all, swallowing hook, line and sinker does not do even a fish any good! Here are a few ‘nonsense-things’ to discuss this week. I am sure you may have loads of them. I do too. But we have to start from somewhere so here goes:

Nonsense Things 1:

Parent-Teacher Associations:

Do you have a kid in school? Ever wondered what this animal really is and in whose interests it exists? Well, the Parent Teacher Association (PTA) has become a perennial feature of almost all pre-tertiary educational institutions. The institution may either be private or public. It may even be a public=private sector participation. The PTA is omnipresent! It is essentially almost invariably for good causes. Apart from a few which may have a governing document such as a constitution, majority just exist. They have no constitutional document and most parents are not even aware of how the executives were appointed in the first place.

But PTAs have now become an essential commodity for all educational institutions. With the declaration of FCUBE leading to the capitation of most of the avenues for raising funds through the ready-made vehicle, the role of PTAs have become very critical. This term and subsequent terms to come, parents would no longer receive huhudious bills directly from schools. These bills would rather make a very short transit journey from the school bill and arrive safely on the PTA bill. Get the drift? What Yaw Safo has forbidden, the PTA would sanction! The school would be abiding by the GES edict not to charge any unauthorized fees but the money would get in anyway through the Trojan horse, PTA! Parents may even find that they would be levied exactly the same fees they have been paying. The only difference now is that it would be coming from the PTA, not the school!!! How many parents are prepared to challenge this phenomenon?

What is consistently conveniently forgotten is that no parent can be compelled to join the PTA. PTAs are essentially voluntary organizations. They therefore do not have any authority or power to compel parents to pay levies they have not agreed to. Worse, and that’s the most important issue in all of this discourse, no child can lawfully be sent home from school or indeed, suffer any kind of punishment or harassment no matter how subtle, as a result of the non-payment of PTA dues. More often than not, it is argued that PTAs are essentially to the benefit of the children in the school. That is a very compelling argument. I share that sentiment too. But someone has to ask how come my MP rides in the best car, how come the Minister goes to Parliament to make all those fine submissions on FCUBE etc, and it has to take parents to buy furniture before the children can go to school? Heads of public institutions are put in an impossible situation as they government grants etc are not paid in time , if at all paid yet the schools must be run. What kind of nation is this when we have to literally pay for everything ourselves and yet we say we have a government? I just don’t get it! So there is a very compelling argument for the role of the PTAs. But if records be checked and audits conducted, it may be noticed that a computer laboratory for example, may have been planned by the PTA ages before and the children of that generation duly mulcted with levies of all colours. Those amounts may have been paid by kids who have gone through the whole school, from class 1 and stayed till exiting JSS 3 without seeing even a photo exhibition of the said computer laboratory. I am alumnus of that great school by the sea, St. Augustine’s College. In 1981 when we entered, there was an edifice by the road side in its foundation stage. It was the proposed school chapel. We were levied as students with chapel project fees until we exited in 1988. You can imagine how impressed I was to learn only last week that the kids are still being billed with chapel project levy and the chapel, ancient of days, still sits on its foundations!

So if you are a parent and suddenly you begin to see new bills coming at you not from the school but from the PTA, you have a few options. You may elect to clam up and make the payment. Majority Ghanaians! Or you may elect not to pay. Insignificant number. Or you may act like I am doing. The bill motivates me to go to the school and make my position on issues clear to the head of the institution. Admittedly, it means they may have genuine needs which for the sake of the kids have to be resolved. Point noted. I therefore make a promise, that every time I make a windfall, I will make a personal donation to the School, to be used for whatever purposes they deem fit. I would however continue to exercise my constitutional right not to belong to any PTA and would thus ignore all bills coming from them. There is one thing that the ‘heady’ and the PTA EXECUTIVES WOULD NOT TELL YOU POUTRIGHT. No one, yes, no one, not even Yewura Kuffuor can compel you to make that payment. If it has to take you as a parent to buy a desk before your child sits in a classroom in this age of positive blues, you have no business sitting at home and moaning. You got to get off your butt and ask your DCE, District Assembly, MP, the GES, Yewura Osafo and indeed Yewura Kuffuor, WHAT THE HECK DO THEY MEAN BY FCUBE?

Oyé Nonsense!!!

Nonsense-Things 2

Ghana World Cup Free Zones Board

Anyone of my fellow country people would not be surprised at the sheer strength of the World Cup hysteria that has gripped this nation. No one can blame us. Indeed, yours truly got into a bind with his manager the day we qualified. Our lights went off and thinking that it was only us being punished, I got into my car and drove into town because I couldn’t let such a day pass me by just like that. I wanted to see a little action as my side of town is completely immune to displays of euphoria. So the euphoria is natural and is to be expected. But you would be naïve if you also didn’t expect all sorts of latter day saints to surface after the deal had been done to claim a piece of the pie for themselves.

It begun with the sponsors. Once upon a time, the GFA would struggle to find sponsors for the Black Stars. Nyame nkye ade, Guinness decided to come to the aid of the Black Stars. But they offered a paltry ¢100m and some products per game. That deal obviously inured to the benefit of Guinness but was doing practically nothing to either guarantee the success of the team or motivate the team to achieve the ultimate dream. That sponsorship in Ghanaian lenses was great but it was obvious that we had worn Ghanaian lenses in all the previous campaigns and had not made it. We therefore needed a sponsor who could match international standards and who genuinely wanted to spend in order that the dream was achieved. Guinness was essentially offering the Black Stars peanuts but we had to take it as we had no one else. That deal, I submit, did nothing to show that it was committed to the dream. The company was losing nothing but only riding on the publicity. If it happened, it happened. Enter Goldfields Ghana Limited. Indeed the World cup dream was salvaged by this hitherto unknown corporate entity who decided to dig deep and make a BIG commitment to the dream. $3 million package!!! The potential shame accompanying that deal for all the others who had previously been just riding on the back of the team and the obvious fact that Ghanaians would wake up to realize that the Guinness deal was actually nothing to write home about compelled Guinness to finally wake up to the undoubted potential that they had wisely bottled up until then. Suddenly Guinness realized that it could put up $160,000 in order to become the “official beverage sponsor” of the Black Stars. Thanks to Goldfields Ghana Limited of Damang, Guinness was compelled to make a “Guinness” contribution to the dream. Better late than never. Omu ani ase awai do do!!!

Then the GFA people decided to test the waters. If the road to Germany was clear, why not make a pitch for the high office. AFTER ALL, PER DIEMS, NICE HOTELS AND NICE WHITE PROSTITUTES TO BOOT MAY BE IN ABUNDANCE COME THE REAL DEAL NEXT YEAR. Fortunately, we have not had meltdown yet at the FA but do not rule it out. Some people would not give up trying to get on the bus even when the doors are shut and the driver is in 3rd gear!!!

Then the supporters got in on the act. Suddenly, many people swore oaths and changed their names to Abraham Boakye, Two man supporter! Under the constitution, there is freedom of association. So we would associate!! By the time we form the queues at the German Embassy, we would have the Black Stars Supporters Union, Ghana Black Stars Supporters Union, National Black Stars Supporters Association, Ghana Union of Supporters of Black Stars, Jesus Incorporated Supporters Union of Ghana Black Stars. Onipa Nye Aboa!!! It had to take the National Supporters Union to issue a cautionary statement on the matter. But who cares? More would be formed in an attempt to reach heaven!

But what really gets under my skin is the recent craze of bank accounts that are being opened everywhere in the name of the Black Stars. Ghanaians are being asked to contribute into those accounts, Contributions are good. Ask your pastor! Indeed, most Ghanaians would have contributed both in kind and in cash without any prompting whatsoever from any quarters. But that’s exactly what some people want to exploit. Why would anyone in his right senses, want to put money in an account when you have no idea who the signatories to that account are. All that we have been told is a promise that it’s to be used for the World Cup. But if man could survive on promises, Ghana would have been a middle-income country by the year 2000. Are those monies to pay the bonuses of the team or per diem for the ministerial team that would inevitably be there to interfere with the team? Do you know? Does someone know? I don’t! Remember account #48?

We have qualified, yes. But that does not mean that we have should be taken for a ride in the name of the World Cup. My advice to all Ghanaians is simple: DO NOT PAY A DIME INTO ANY OF THOSE ACCOUNTS UNTIL WE HAVE ESTABLISHED THE ALIASES OF WHOEVER/WHICHEVER IS BEHIND THEM. We need to establish a trust fund with duly appointed trustees with defined responsibilities and a clear agenda for how the funds generated would be utilized. Otherwise, my fellow country people, what we’d be doing is lining up the pockets of other people who would laugh all the way to the bank at our collective expense!

Oyé Nonsense proper!!!

Joe Aboagye Debrah Esq.
Legal Practitioner, Accra

Open Letter To Heineken

THOUGHTS OF JUNE 30, 2005 –
AN OPEN LETTER TO HEINEKEN INTERNATIONAL

Dear Heineken,

Lots of people around the world say that you are such a wonderful company to work with. I do not begrudge them at all. I have also worked with you for close to four years of my professional life and I must confess I enjoyed working with you or a part of you. My joy and indeed, that of my management colleagues during the period before you decided to offload your stake in Ghana Breweries Limited (GBL) was accentuated by the man Segun Adebanji, the former Managing Director. Mr. Adebanji showed that with a focused vision, a Ghanaian team can deliver more than our Black Stars have done in Germany.

I have taken the liberty of writing this open letter partly because today is very poignant for me and for my former management colleagues. It is exactly one year when we realized that all that we had been told by Heineken, in the lead up to the takeover of GBL were untrue and calculated to achieve one and only one objective, that is get Diageo Plc to acquire your shares no matter what Ghanaian law said. What happened to the former employees of GBL and their families would not be the headache of Heineken at all. It is indeed strange how fast time flies. It’s been an eventful year. I just could not let it pass without writing this open letter to you. The legacy of the takeover has led to the birth of Guinness Ghana Breweries Group (GGBG), Guinness Ghana Breweries Limited (GGBL), Guinness Ghana Breweries (GGB) and other nomenclature which is enriching the corporate jurisprudence of Ghana.

I must quickly add that the Director for Africa at that time (I believe he has not been made redundant yet) who at all material times was and still remains a member of the Board of GBL has written to me that Heineken was fully in support of all the actions being undertaken by GGBG in respect of the rights of your former employees. I have put his email in a photo frame. Its contents have been very helpful in the on-going battle to get Ghanaians to wake up to breaches of law that have occurred in Ghana which you can only dream about in Europe but dare not do. On the first anniversary of that infamous meeting and my delinking from the business, I wish to take the opportunity to draw the attention of the world to certain events that have occurred in your former OpCo in Ghana, GBL, following Heineken’s sale of its interests to Diageo Plc’s subsidiary in Ghana, GGBL in 2004.

I do so fully cognizant of the fact that the incumbent Chairman of the Executive Board of Heineken International personally visited Ghana before he assumed the position in the lead-up to the takeover. I am partly motivated to write this open letter due to the fact that I have a personal responsibility to ensure that justice is done to all the personnel of GBL in the wake of the takeover. A lot of the personnel of GBL looked up to us and we did not see that all the talk of seeing to the interests of employees etc would not be followed through. Right now, four other management personnel have petitions pending at the National Labour Commission (NLC) here in Ghana. My law firm will lend its assistance to these colleagues in their fight for justice in the land of their birth. I am also writing this commemorative piece due to the fact that I had a personal encounter with the present Executive Chairman of Heineken International during my tenure as Company Secretary/Legal Adviser of GBL. During that time, (I believe he was a member of the Executive Board but was not the Chairman), he made a trip to Ghana to assure all the employees of GBL that the capital restructuring project that GBL was undertaking in 2003 would resolve all the long-term problems of the Company and assure growth and profitability. This letter is therefore informed in part by the statements that the present Chairman of Heineken International personally made to us as employees of GBL juxtaposed with the events that unfolded soon thereafter culminating in the takeover by GGBL.

Until June 30, 2005, I was the Company Secretary/Legal Adviser of GBL. Further to the divestment of the Heineken stake in GBL, my position was declared redundant. Consequently, together with 9 other management personnel, we negotiated an exit package which was duly set down and executed on June 9, 2005. The new management of GBL deliberately chose to interprete the said agreement to the detriment of me and my management colleagues by deying us the agreed gratuity payments and also miscalculating our pension entitlements. More importantly, someone within the organization decided not to disclose the fact that the yield on our pensions for April, May and June 2005 were outstanding. This was never disclosed as part of the package and was only acknowledged after the new management had been challenged. As a fully qualified Ghanaian barrister, I have been at a loss why two major multinationals, Diageo Plc and Heineken International, would behave in such a manner to infringe the rights of workers when they know they cannot do any of those things in Europe. Is it because in Africa there seems to be no laws to guide corporate actions? I was therefore compelled to file a petition before the legally mandated body in Ghana for the purpose, the National Labour Commission (NLC) in July 2005. I also decided to hold my official car as a lien against the payment of my entitlements. Most of my colleagues, knowing fully well that their entitlements have been deliberately miscalculated, decided on a safety first approach by taking the offer and suing later for their money. As a lawyer, I could not accept a situation where my employer is fully aware of mistakes and yet openly dares everyone and say, you can decide to go to court if you wish. I could therefore not take any money purporting to be in full settlement of my terminal benefits when in fact it was not. I have therefore not been paid one dime since I exited GBL on June 30, 2005.

Having sat in the GBL Boardroom for 4 years and having played a major role in the successful completion of the acquisition process from the GBL legal perspective, I am impressed by the loud silence of some of the members of the board who are privy to all what has transpired since Project Marina was concluded. Project Marina was marketed to GBL personnel as a merger, knowing fully well that this was an acquisition so that the ground would be smoothened for the takeover. Some of us are glad we expressed our opinions on the transaction even at that time. For me personally, if I did not have the courage to put my professional opinion in writing, I would have been nailed by the very same people by now with allegations of culpability. The records would clearly show that at approximately 11 p.m. on June 30, 2005, I was handed a letter signed by Mr. Devlin Hainsworth, Managing Director of GGBL and GBL, purporting to detail my terminal entitlements. The said letter was not on a corporate letterhead and contained lots of errors. On July 2, 2005, I wrote to GBL pointing out the errors. About a month later, I received an undated letter which stated inter alia, that I was not entitled to gratuity payments. Strangely, GBL’s answer to my petition attached a letter dated July 4, 2005 also detailing a different amount as my benefits. Characteristically and quite unworthy of a corporate entity of the caliber of Guinness, though the said letter sought to portray that it was written by the MD, it was unsigned. The official copy of what the business offered as my terminal benefits was unsigned! I have also till date not received a copy of that letter except the copy I received from the NLC which was the first time I even knew of the existence of another letter on my benefits. The NLC has since October 2005 ruled that I was entitled to full payment of my terminal benefits as determined by the June 5, agreement. Guinness filed an application for certiorari in the High Court asking the Court to quash the order of the NLC. The High Court dismissed the application by GBL in March 2006 and further ordered them to comply with the NLC’s ruling. However, GBL, being of the stock of Guinness which seems to be above Ghanaian law, has till date not complied with the Court’s orders. The NLC has therefore been compelled to file an application for an order of enforcement from the same High Court such that GBL would be compelled to abide by the Court’s ruling. God willing, the Court will have an opportunity to make a ruling in the matter on July 5, 2006.

As the custodian of GBL rules and regulations, I would not waste my energies if I was not so entitled under law. That informed my attempts to draw the attention of the Africa Director who incidentally is a member of the GBL Board and also the GGBL Board and whom I have personally served as Board Secretary to the issues. Till date, none of my communication has ever been acknowledged though I know as a fact that they were received. Indeed, I do know that he comes into Ghana for board meetings but who am I in the scheme of things for Heineken. I was a disposable asset just like all the employees of GBL who have no inclination of the legal implications of being shifted from their original employment as GBL workers to another corporate entity, Guinness, without approval of any shareholder or board of GBL. I therefore do not expect any response to this but to say the truth, just as the Africa Director’s answer provided me with a momento for my children, I would be delighted for any response howsoever couched, from Heineken, so I can enhance my book with it. I know I am too insignificant to Heineken after the disposal of its stake to interest anyone. But the records will show that Heineken is fully aware of the facts of this matter. The records will definitely show that the Board of GBL, both pre-acquisition and post-acquisition is fully aware of the facts. Let none therefore plead ignorance. As indicated in an earlier communication, the motive underlying a decision for the new owners of GBL to antagonize senior Ghanaian professionals in the land of their birth after such dedicated service, defies my understanding. As always, the so-called advisors, who are laughing all the way to the bank, are the only beneficiaries. The principle of "pacta sunt servanda” means that when an agreement is executed, one is obligated to abide by it. The events of the night of June 30, 2005, when senior managers were hounded out of the business and told to their face to go to court if they wished is the lowest point any entity would sink to. Managers who had dedicated their lives to the business did not even have a handshake as acknowledgement of their roles. I had served only close to four years and held some pretty unconventional professional opinions. What is happening is my case is therefore not unexpected. I am however saddened by the fate of some of my colleagues who spent their entire careers with you, from the Kumasi Brewery Limited (KBL) days through the merger with GBL and the takeover by GGBL. These colleagues were rather treated worse than criminals. There is therefore a groundswell of ill-will engendered. The mindset of the new owners of the business would definitely cost the business in the long run. What happened to the Ghanaian senior managers could never happen in a place like Nigeria. They would never take such treatment from foreigners. However the perception that Ghanaians are docile and therefore all sorts of people would be brought down from London solely to make savings on the provisions for the redundancy exercise without recourse to their rights would have to be discarded.

As a lawyer, living in the land of my birth, with inalienable rights under the Ghanaian Constitution, I am sure you would agree that I would defend my interests. Workers have been offered lower jobs and told to either take them or leave, in contravention of Ghanaian law. The fact that an avalanche of issues has not emanated does not mean that Heineken should not be concerned about what’s going on in Ghana and the potential it has to soil the good corporate image of Heineken. The new owners are so powerful that they can create and uncreate news themselves with little effort.

Respectfully, everyone who is privy to the core details of Project Marina cannot allege ignorance. Having rendered dedicated service, the least anyone can do is also to do the right thing by paying what is legitimately due to us under law in Ghana. In the mean time, I shall continue to fight to assure justice for myself and for my colleagues. Indeed, we have established a not-for-profit solely dedicated to preventing such hardships befalling our citizens in the land of their birth. We shall employ all legal means necessary to ensure that our rights are not trampled upon in the land where our umbilical cords are buried. I have been to Holland and also lived in the United Kingdom. You have no qualms out there that you are a stranger and you ought to abide by the law. As a lawyer, I wonder why certain personnel posted to Africa believe that the laws have been made for only locals and that they and the entities they run are above the law. If only our people will wake up to their rights! Let me end by giving you an example of what I am referring to. GBL has had a pension scheme for managers. Indeed, it is the lifeline for all managers and non-managers and many aspire to the position because of it. Managers also have an incentive to stay in the business and offer dedicated service as a result of the fund. It’s your lifeline to your deadline, literally, when the curtains close on your working life. My understanding right now is that the new owners of the business have decided to pay off all the managers, their accrued interests in the fund. It is unclear the modalities. But when an employer offers you your insurance to a decent retirement when you are a youngman, without any clarity as to the legal basis and effect of such a fundamental change to your service conditions, one would expect questions. Well, we are Ghanaians. We take the money on offer and go to church to thank God for the windfall. Sown in 2006, to be reaped in 2016 thereafter, so help me God!

So I am going out with my dear wife tonight to celebrate an eventful day. Revelation came on June 30, 2006 when we saw Devlin Hainsworth kick Akoto under the table to indicate that he should throw our letters at us and hound us out of the business that late in the night. That is when all the others knew what I had known all along! We had been fooled in the land of our birth by foreigners acting with the active connivance and support of some of our own citizens! That was the night when you had so-called advisers encouraging managers to go to court fully aware that it will lead to loads of money in their pockets. It has been a wonderful life experience since that day. Very tough adjustment to the new life but known true friends. Begun a wonderful law firm, 1stLaw in Accra with a wonderful senior and true friend, Vincent Aikins Esq., working to prevent corporate fraud in all shapes and forms with ThinkGhana and still struggling to please my Lord. It’s been a year, but thanks to my Lord above and my lady below, we still live. More anon.

Thanks for surprising Amsterdam, anyway. Mr. Alfred Heineken would never have done what you have done to the employees of your former subsidiary in Ghana. As our people will say, Ayekoo!!! Me ma me ho afrihyia pa!!!

"A lie never lives to be old." (Sophocles)

Yours sincerely,

JOE ABOAGYE DEBRAH Esq.
Former Board Secretary/Legal Adviser, GBL
Partner, 1stLaw, Accra
CEO, ThinkGhana, Accra