REPLY TO STATEMENT OF DEFENCE AND DEFENCE TO COUNTER-CLAIM

1. Plaintiff joins issue with defendant on his statement of defence generally.

2. In answer to paragraphs 1 & 2 of the statement of defence, plaintiff maintains paragraph 1 of the statement of claim and avers that paragraph 1of the statement of defence is scandalous and mischievously calculated to denigrate his person.

3. The Plaintiff further reply to paragraph 2 of the statement of defence and counterclaim that he has been and still is a member of the Institute of Chartered Accountants (Gh) for the past 32 years and remains in good standing.

4. Plaintiff further avers in answer to paragraph 2 of the statement of defence that his status as a business executive is not in doubt having held very senior positions in private and public sector institutions in Ghana and abroad such as at Ghana Cocoa Board, Tema Oil Refinery and the International Cocoa Organization.

5. In answer to paragraph 3 of the statement of defence, Plaintiff repeats paragraphs 3, 4, 5 & 6 through to and inclusive of paragraph 13 of the statement of claim.

6. In further answer to paragraph 4, plaintiff says his acceptance of the invitation from the sole owner to manage defendant was simply seen as an opportunity to place his expertise at the disposal of defendant rather than for a so called “colossal status” etc. as is now alleged by the defendant.

7. The Plaintiff avers that the cost of vilification visited on him and his family by the Defendant, its assigns and supporters and the public ridicule endured by him, particularly from radio commentators, and the damage to his reputation and business interests far outweigh any perceived benefits so claimed by the defendant to have been earned by reason of his association with defendant.

8. Plaintiff in further answer says he laid a strong foundation for defendant, in his bid to re-establish it as a power house of football in Ghana and Africa at the club level.

9. Plaintiff can boast of a cart-load of achievements as the executive chairman of defendant and other endeavors, among which are:

a. Saving the defendant from a state of near bankruptcy as at 2010 when he assumed office, through prudent management of resources.

b. Winning the national league trophy two years in succession within his short stay of three years whereas the team had been in the address as ‘trophiless’ club in the three seasons preceding his entrant to the scene.

c. For the 1st time in the life of the defendant, football season report was published for defendant.

d. Sunderland AFC of England built a relationship with defendant which gave the latter publicity at Stadium of Light, as the only club outside the U.K that appeared on the advertising billboard of a premier league club.

10. Plaintiff maintains that as part of his management capability, he embarked on long term projects such as laying foundation for offices, training facilities, and providing permanent accommodation for players of defendant club.

11. Paragraph 5 of statement of defence is denied as Plaintiff maintains that at the time he assumed office, the defendant had been ran down financially and this affected its performance in the domestic league in the preceding four seasons.

12. Plaintiff avers that defendant’s own audited financial statements for the year which ended 30th June 2010 indicated that the defendant had current liabilities of two million, eight hundred and thirty-four thousand, nine hundred and seventy-three (GH¢2, 834,973.00) and negative net working capital of two million one hundred thirty-seven thousand, six hundred and nineteen cedis (GH¢2,137,619.00) and negative net equity of one million, three hundred thousand, two hundred and sixty-one cedis (GH¢1,300,261.00).

13. Plaintiff avers that in 2010, defendant was technically bankrupt; accordingly, standing in a fiduciary position of the defendant club, he could not stand aloof to see the collapse of the Defendant club hence the decision of the Board members to lend money to the club, particularly as the sole owner had charged him to do everything lawful, as a competent manager to salvage Defendant from the doldrums.

14. Plaintiff says that in utmost transparency, he did not and could not keep the sole owner in the dark and therefore briefed him regularly on the direction and focus of his administration on the following matters:

a) Precarious financial situation of the club on assumption of office of the Plaintiff to which shareholder advised that the Board of Directors could consider borrowing from the banks and/or from its members to finance operations of the club.

b) The need to settle lawful debts such as amount owed to Multi Credit Savings and Loans Ltd; Kessben; Silvercrest; Football Clubs; JA Plant Pool in respect of club bus; Hotels among others to avoid Court actions.

c) Major FIFA fines in respect of Shilla Illiasu transfer and Coach Hans Dieter Schmidt which Plaintiff ensured were settled to avoid placing the club in jeopardy.

d) Training tours and international friendlies whose intended objectives and outcomes were truthfully communicated.

e) Player transfers and related cooperation agreements and their underlying rationales were faithfully disclosed.

f) International collaborations starting with Sunderland AFC and moves to get Bidvest in South Africa were discussed and disclosed.

g) All sponsorship concluded in Ghana and an initiated international sponsorship for Youth Academy from Symbion Energy of US through Sunderland AFC’s introduction, including the demands of prospective agents were tabled.

h) Key protocol payments including withdrawals from the club’s accounts ostensibly intended for the shareholder and its impact on the club’s finances were brought up for discussion.

i) Development projects at Adako Jachie. 15. Plaintiff further states that any money(s) paid to him by the defendant was either a refund for expenditures made on behalf of the defendant in the normal course of operations or part repayment of loans advanced by the Plaintiff to the defendant.

16. In answer to Paragraphs 6, 7 and 8 of the Defendant’s Statement of Defence & Counterclaim, the Plaintiff avers that the Companies’ Act, 1963 permits a director to enter into any contract with the company providing there is disclosure at a meeting of directors of said director’s interest in the contract, and that contract in which the director is interested shall not to be liable to be avoided by reason of the director holding the office of director or by reason of the fiduciary relationship thereby established, and the director shall not be liable to account for any profit thereby made.

17. In further answer to Paragraphs 6, 7 & 8 of the Defendant’s Statement of Defence & Counterclaim, the Plaintiff avers that the decision for the directors to lend money to the Company was made at the maiden meeting of the Board of Directors of defendant.

18. Paragraphs 9 – 11 of the statement of defence and counter-claim are also denied. Plaintiff maintains that acting together with the Directors of the Board, management, officers and the teeming fans of defendant alike, he acted in good faith to seek the best interest of the defendant in various ways.

19. In further answer to paragraph 9 of the Statement of Defence & Counterclaim, the Plaintiff avers that the Companies’ Act, 1963 (Act 179) endows the Board of Directors with the right to exercise all the powers of the company, including the power to borrow money and to issue debentures.

20. In further response to paragraph 9 of the Defendant’s statement of defence and counter-claim Plaintiff maintains his claim in paragraph 5 of the Plaintiff’s Statement of Claim, and further avers that the Board of Directors of the Defendant further decided that loans given by Directors shall be paid with interest at 15% per annum, which interest was significantly lower than the prevailing commercial lending rate.

21. Plaintiff denies paragraph 12 of statement of defence and shall put defendant to the strictest proof. Plaintiff says the sole share-holder having appointed other equally competent men and women to assist him with defined duties, he never interrupted with their duties.

22. Paragraphs 13 & 14 of the statement of defence and counter-claim are denied as being factually incorrect.

23. In further denial, plaintiff avers that it is a testament to the Defendant’s ignorance of the proper conduct of company proceedings that the Defendant is unaware that non-directors or non-shareholders e.g. advisors, consultants to the company or recorders, may be invited to sit in on board meetings and that such persons are recorded as merely being ‘in attendance’.

24. Plaintiff denies paragraphs 14 and 15 of the statement of defence and states that there was not a single moment in his tenure that he and his board members acted ultra-varies or at all, to defendant’s articles/regulations.

25. Plaintiff in further denial says Directors in the normal course of business such as was the case in the instant matter did not need to seek renewed mandate from the sole shareholder.

26. Paragraph 16 of the statement of defence and counter-claim is vehemently denied, to the extent that defendant alleges that Plaintiff has disabled it from finalizing and filing its audited accounts or at all, when he has had no role to play to inhibit the defendant.

27. Plaintiff avers that whilst in office between May, 2010 and July, 2013 and to the knowledge of defendant, its regular auditors, Asamoah Bonsu & Co certified its audited account for the financial year which ended on 30th June, 2011, whilst the audit for the 2011/12 season was in progress by the time he left office in July, 2013.

28. Plaintiff maintains that defendant’s attribution of its alleged inability to complete auditing of accounts to him is therefore false and very mischievous, having regards to the following:

(i) In Plaintiff’s resignation letter to the sole owner of the defendant dated 22nd July, 2013, he assured that he “would be available to assist the auditors in the event that they require explanation pertaining to any financial transaction” whilst in his handing over notes to the owner and copied to the acting Chairman of the Board of Directors of the defendant dated 5th August, 2013, he confirmed his “availability to provide further insights into any issue, if the need arises”.

(ii) Defendant and its auditors made no effort whatsoever to contact plaintiff to raise any question about any issue by any means whatsoever.

(iii) On the contrary, when Plaintiff and his lawyers wrote to the defendant through its Board Chairman on 19/03/14 and 8/04/14 to demand payment of defendant’s just debt to the plaintiff, it failed and or refused to even acknowledge receipt of these letters.

(iv) Mindful to avoid needless litigation, Plaintiff’s lawyers again wrote to the defendant on 11/06/14 to express regret at its silence on the issue of the outstanding debt which form the subject matter of Plaintiff’s claim.

(v) Plaintiff says when the defendant responded to these letters, it stated per the Board Chairman’s letter of 18/06/14 (received by the lawyers on 19/06/14) inter alia, thus:

“Please be informed that the Board is awaiting the AUDITED ACCOUNTS of the club for the period under review and we shall then be in the position to address the issue of the club’s indebtedness to your client, other bodies and individuals.”

29. Plaintiff says per the named letter of defendant, it admitted of its indebtedness to him; it is therefore estopped by conduct from now denying its admission of the lawful debt.

30. Plaintiff avers that accordingly, when his lawyers reminded the defendant that the letter was “rather bare and unsatisfactory” as it did not give time lines for payment, defendant had no answer to give.

31. Plaintiff contends that it is strange, having regards to the Ghana Football Association’s rules and regulations for the defendant to claim that it has been disabled from completing its audited accounts and yet it is fully participating in the FA’s premier league competition.

32. Plaintiff says notwithstanding the averment of defendant in paragraph 16, defendant’s audited accounts for 2010/2011 and management account for 2011/2012 reveal lending by Directors and management members to defendant.

33. Paragraph 17 of the statement of defence of the defendant is denied and Plaintiff shall put the defendant to strict proof.

34. In further denial of paragraph 17, plaintiff says he had various committees that he worked with, in the interest of defendant, besides the regular consultations he had with his working colleagues.

35. Plaintiff maintains that regular meetings of management were held to discuss, among others, technical and financial matters and Directors were free even to attend such meetings, which they frequently did attend.

36. In answer to paragraphs 18 & 19 of the statement of defence in relation to player transfers, plaintiff says the paragraphs are vicious of him although they expose the defendant as not having bothered even to read the handing-over notes aforesaid or at all which contained detailed explanations for defendant’s perceived issues or worries.

37. The plaintiff avers that he has not at any time during or after his tenure as Executive Chairman of defendant benefitted personally from any transfers that were concluded during his term of office.

38. Plaintiff avers that he ran a very transparent system of player transfer assisted by the FIFA Transfer Payment System (TMS) which makes all documentation relating to player sales available not only to the parties involved but to the football authorities of both countries and that all documents and information on any player sales and transfer internationally has been at all materials times available to the defendant and its TMS Manager which allows the Finance Manager to invoice the clubs.

39. Plaintiff avers that it is elementary knowledge that if the said handing over notes were read by the defendant and it had issues, it ought to have sought clarifications which it failed to do largely because it could not know what was entailed in the notes, not having read the same. Accordingly, paragraphs 18(a) – 18(f) and 19(a) – 19(d) of the statement of defence and counter-claim are answered as follows:

18(a) Plaintiff rejects defendant’s allegation that he claimed that the receipts on how he spent US$17,021 on transport expenses are missing and avers that he never, at any time during or after his tenure as Executive Chairman of the defendant, told any auditor, Board member or officer of the defendant that such receipts were missing. Without admitting the amounts stated, all receipts covering any transport expenses were provided in support of any claims made, to the Finance Manager of the defendant who is still at post and whose responsibility it is to keep appropriate record of such receipts, and that any claim to the contrary by the defendant is an attempt to deceive the court. Plaintiff could have provided photocopies of the receipts if defendant had requested same for any purpose.

18(b) Plaintiff further rejects the allegations of defendant of his (plaintiff)’s alleged “mixed up” receipts of GH¢70,581.00 covering transport and incidental expenses on Messrs Kwame Baah-Nuako, Patrick Ofori and himself.

Plaintiff maintains that he never made any such disclosure anywhere and to whosoever as all receipts covering any transport expenses were provided in support of any claims made to the Finance Manager of the defendant who is still at post, whose responsibility it is to keep appropriate record of such receipts, and that any claim to the contrary by the defendant is an attempt by the defendant to deceive the court. Plaintiff could have provided photocopies of the receipts if defendant had requested same for any purpose.

18(c) In answer to paragraph 18(c) of the statement of defence and counter-claim, plaintiff avers that Protocol payments are made in the ordinary course of business and does not require shareholder or Board approval and that protocol payments as made in the football industry are not generally covered by receipts and tend to cover press soirees, officials hospitality and appreciation, player motivation, and club to club cooperation.

In effect, the alleged payments in excess of GH¢13,000 standing in the name of the Plaintiff would have been made in good faith and in furtherance of the activities of the Defendant, as was the practice of the Defendant before, during and after the tenure of office of the plaintiff. All such payments were part of a figure of GH¢82,248 in respect of publicity protocols as captured in the Defendants own Management accounts for the year ended 30th June 2012 and signed by the Finance Manager of the Defendant.

Other assigns of the defendant, including two current officers of the defendant all took part in facilitating the payment of these protocol monies without providing receipts and the Plaintiff’s payments, without admitting the amounts quoted, cannot be treated in isolation. The officers include:

i. Mr Samuel Opoku Nti - Special Assistant to Executive Chairman

ii. Mr Charles Poku - Finance Manager

iii. Mr Ben Nti - Administrative Manager

iv. Mr Jerry Asare (deceased) - Board Member

v. Alhaji Abu Lamini - Board Member

vi. Mr Nana Kwame Dankwa - Deputy Accra Rep.

vii. Ernest Owusu-Ansah - Operations Manager

18(d) The Plaintiff denies paragraph 18(d) of the Defendant’s statement of defence and counter-claim and avers that any payments made to Feyenoord were not to faceless people and were in respect of monies owed Feyenoord in respect of the sale of the player, Yaw Frimpong to TP Mazembe and/or as settlement of Defendant’s indebtedness to the said club resulting from the purchase of players from it.

18(e) The plaintiff avers that West One Ltd was the agent for the club at all material time during the negotiations and transfer of the player Ben Acheampong from the defendant to Petrolos Atletico Luanda of Angola and was entitled to 15% commission on all sums received in respect of the player transfer and the cooperation agreement between the defendant and Petrolos Atletico Luanda. That the payments made to West One were duly supported by records including agreements, emails, invoices and the agreement made between the defendant and Petrolos Atletico Luanda.

If defendant has misplaced the original of the correspondence on above, plaintiff is ready to furnish it with e-mail communication and photocopies of records.

18(f) In response to 18(f) of the Defendant’s statement of defence and counter-claim the Plaintiff avers that Wilsad Ltd introduced and assisted in lobbying, negotiating and signing the sponsorship deal between the Defendant and Scancom Ltd. That at all material times Wilsad Ltd acted as the agents of the Defendant for a fee of 10% on monthly sponsorship received by Defendants for the MTN sponsorship deal. Wilsad Ltd arranged, attended and guided officials of the Defendant, including the Plaintiff at relevant meetings with the sponsor and that resulted in an enhanced and innovative sponsorship deal that did not bring only cash but projects, cup winning bonuses and products to the defendant. Wilsad Ltd. received only 5 monthly payments amounting to GH¢25,000 due to liquidity problems faced by the Defendant, and through pleas by Defendant, Wilsad Ltd agreed to allow suspension of payments until the Defendant’s finances had improved.

All payments made to the company were supported with relevant invoices and agreements. Photocopies of documents on the relationship are available.

Plaintiff maintains that total payments made to Wilsad Ltd to date amounts to GH¢25,000 and cannot in any way exceed the sum of GH¢556, 247 excluding interest claimed by Plaintiff in this suit, as alleged by the Defendants.

19(a) The Plaintiff denies the claims in paragraph 19(a) of the statement of defence and counter-claim and avers that the player Albert Bruce was given out on loan to Legia Warsaw of Poland for the period 1st January 2012 to 31st December 2012 for twenty five thousand Euros (EUR25,000) which was duly paid by Legia Warsaw.

The Polish club was to pay a further one hundred thousand Euros (EUR100,000) if they decided to buy the player permanently on the expiration of his loan period. Legia Warsaw did not take up the option to buy the player at the end of the loan period on 31st December 2012 and the player returned to Ghana and re-joined the Defendant’s playing squad until his contract with the Defendant ran out.

The player was not kept by Legia Warsaw beyond the loan period as claimed by the Defendant. Plaintiff included the status of this case in his handing over notes made available to the Shareholder and the current Board Chairman of Defendant, Paul Adu-Gyamfi, Esq.

19(b) In respect of paragprah19 (b) of the Defendant’s statement of defence and counter-claim the Plaintiff avers that the players left in Serbia were youth players and not senior or ripe players as alleged by the Defendant.

Plaintiff further avers that the agency fee in these transactions paid was US$18,000 and not US$25,000 as alleged by the Defendant. Epaphras Ltd of Ghana put the training tour of Serbia for the Defendant together. Epaphras acted as agents for the Defendants in introducing the Defendant to Virtus International who bought the economic rights of the players from the Defendant. Epaphras Ltd was paid their agency of US$18,000 for their role in the transfer of the economic rights of the players from the Defendant to Virtus International.

Plaintiff therefore denies the Defendants claim that there is no justification in the payment to the agents and also denies the amount stated in the Defendant’s claim. Plaintiff included the status of this case in his handing over notes made available to the Shareholder and the current Board Chairman of Defendant, Paul Adu-Gyamfi, Esq.

Plaintiff avers that the defendant benefitted from the above-named transaction, by receiving a total of US$145,000 whilst the plaintiff was in office. A further sum of US$75,000 is due the defendant on the contract.

19(c) In response to paragraph 19(c) of the statement of defence and counter-claim the Plaintiff avers that the player Abdul Samad Oppong went on a free transfer to ES Setif of Algeria as his contract was left with only a few days to expire.

To avert a situation where the club would have lost out completely on receiving any payments on the transfer and having still to pay the player an amount of GH¢10,000 being outstanding sign-on fee owed the player, the Plaintiff negotiated with the player to pay the club GH¢30,000 out of his expected sign-on fee in exchange for early termination of contract to allow the player sign for the Algerian club immediately.

The player and the Defendant agreed to net off the monies due each other and the Plaintiff in his handing over notes to the Defendant drew the Defendant’s attention to the fact that the player had not honored his part of the agreement and nothing stops the Defendant from seeking redress at the appropriate FIFA forum. Plaintiff therefore cannot be held liable for the inaction of the defendant. Plaintiff included the status of this case in his handing over notes made available to the Shareholder and the current Board Chairman of Defendant, Paul Adu-Gyamfi, Esq.

19(d) In response to paragraph 19(d) of the Defendant’s statement of defence and counter-claim Plaintiff avers that the player Jordan Opoku was loaned to KS Tirana of Albania for the sum of twenty thousand dollars (US$20,000) for 4 months from 30th January 2011 to 31t May 2011.

KS Tirana failed to pay the US$20,000 transfer fee to the defendant. Plaintiff pursued the issue with FIFA Player Status Committee which ruled in favor of the Defendant that KS Tirana pays the US$20,000 plus 5% interest from the original due date.

The FIFA decision was obtained during the term of office of the Plaintiff and Plaintiff was pursuing KS Tirana to settle the judgment debt. Plaintiff included the status of this case in his handing over notes made available to the Shareholder and the current Board Chairman of Defendant, Paul Adu-Gyamfi, Esq.

40. The plaintiff denies paragraph 20 of the statement of defence and counter-claim and avers that the services of the Brazilian, Da Silva Lima Hermes was requested for by the defendant’s Head Coach, Mas’Ud Didi Dramani; a contract was duly signed between the player and the defendant and the player was part of the defendant’s team that started pre-season training in Tamale in 2013.

41. Paragraphs 21, 22 & 23 of the statement of defence and counter-claim are denied and the plaintiff shall put the defendant to strict proof.

42. In answer to paragraph 24 of the statement of defence and counter-claim, the plaintiff denies that he engaged in wanton and reckless dissipation of defendant’s financial resource in relation to Nathaniel Asamoah.

43. Plaintiff maintains that any money paid to the named player, Nathaniel Asamoah, per plaintiff’s instruction was because there was a validly binding contract between the player and the defendant.

44. Plaintiff further maintains that if the defendant’s assigns made any further payment(s) to the player since his resignation, without the said payment being on the basis of a written agreement between it and the player, then plaintiff cannot be held responsible for any loss in that transaction.

45. In answer to paragraph 25 of Defendant’s statement of defence and counter-claim plaintiff denies that Dr Baah-Nuakoh was the leader of the delegation to Tanzania. The organizers of the match, Future Century Limited were introduced to Defendant by the President of the Ghana Football Association, Mr. Kwesi Nyantakyi per correspondence he forwarded to Defendant. The trip was coordinated by Ben Nti, Administrative Manager, and led by Board Member, Jerry Asare (deceased). Defendant’s team represented the country at the Independence Day celebrations of Tanzania at the request of the Ghana Football Association who sanctioned the trip.

46. Plaintiff vehemently denies paragraphs 26 & 28 of the statement of defence and counter-claim.

47. In further denial, plaintiff explains that all expenses were legitimately made in furtherance of the trip. The Defendant received a total of US$17,500 (comprising US$12,500 by Bank transfer and US$5000 cash payment in Tanzania distributed to players and officials by Defendant’s then Operations Manager, Mr. Owusu Ansah) and not US$12,500 as alleged by the Defendant. On return, plaintiff’s administration pursued the Tanzanian organizers of the tournament for settlement of the outstanding money due defendant, including a petition to the Tanzanian Football Association.

Plaintiff’s handing over notes to Defendant clearly specifies an outstanding amount of US$28,000 payable to defendant.

48. Paragraph 27 of the statement of defence and counter-claim is vehemently denied as being untenable and without any basis in law or in equity.

49. Paragraphs 29, 30 & 31 of the statement of defence and counter-claim are equally denied.

ANSWER TO COUNTER-CLAIM

(i) Plaintiff repeats paragraph 1 – 49 of the reply to the statement of defence and counter-claim of the defendant and says that the defendant is not entitled to any part or at all of its counter-claim, including the claim for special damages the sum of which has not been stated to avoid the payment of filing fees.

DATED AT AGYABENG AKRASI & CO., BEHIND GLORY OIL FILLING STATION, DANQUAH CIRCLE, OSU-ACCRA THIS 12TH DAY OF MAY, 2015.