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112. On 14 March 1996 Mr. Ofori had sent a fax on “Danielli Mabey Ltd” headed notepaper (a Ghanaian company which was wholly unrelated to M&J and which is understood to have been owned by Kwame Ofori). The fax was marked for the attention of Mrs Margaret Ofori in Accra and appears to have been then passed to M&J. The fax detailed how it was that “the situation in Ghana has been deteriorating gradually ever since Director D came in to Ghana.” There can be little doubt that the contents of the fax had become known at Twyford before Mr. Ofori visited M&J’s Head Office. This is because Director D had himself sent a “confidential memo” dated 25 March 1996 direct to Director B rebutting Mr. Ofori’s assertions, and detailing how it was that he had had a meeting recently with the only person who “can guarantee M&J’s position in this market”: Kwame Peprah. Mr. Peprah was at that time the acting Minister of Finance and the Chairman of the NDC Finance Committee.
113. In fact Director D had been introduced to Mr. Peprah through Baba Kamara (aka I. B. Ibraimah), who was the NDC Treasurer, and ‘political overseer’ for the Ministry for Roads and Highways.
114. The role of Baba Kamara and his value as an agent to M&J is made clear in a document authored by a M&J executive, probably prior to July 1996, and sent to Director A; Director B; Director C and Director E. The document is entitled “Ghana” “Review of existing Agent and introduction of alternative Agent”. Concerning the value of the proposed new agent, “Kamara Ltd is a small Ghanaian contractor owned by Baba Kamara. He is the NCE (sic) Treasurer and also the political overseer for the Ministry of Roads and Highways. He is a member of the all powerful NDC Finance Committee which includes Kwame Peprah (Minister of Finance and Minister of Mines and Energy), Obed Asamoah (Justice Minister and Foreign Minister) and Mrs Rawlings amongst others….[he] has considerable influence over Ato Quarshie, the Minister for Roads, the Deputy Minister and other top ranking civil servants and has been working with us since June 1994. This has been demonstrated over the allocation of the extra Stg 1.3 mil for the Tano bridge and the Stg 4.5 mil allocation for the Priority Bridge Programme.”5
115. Additionally, Mr. Kamara’s wife was secretary to the then President of Ghana - the former Flight Lieutenant ‘Jerry’ Rawlings, who had originally achieved power by means of a military coup in 1981. Unsurprisingly, a person in the position of influence of Mr. Kamara was an attractive prospect to M&J as agent for their business in Ghana, and the SFO contend, that M&J knew and intended that commission paid to Mr. Kamara would be deployed as and when required to corruptly promote M&J’s commercial interests. The SFO believe that because he had demonstrated his effectiveness to attract business corruptly, he was appointed by M&J. This is not accepted by M&J.
116. Allied to the decision to use Mr. Kamara as their agent from sometime early in 1996, M&J had plainly also decided to “sideline” Mr. Ofori, and to impose more direct control over the payments made to “local personalities” by Director D supervising and control from 1994 and the creation of the notional GDF.
117. As will become apparent, whereas in Jamaica corrupt payments were directed towards a specific individual, payments allocated against the GDF were more general and numerous government ministers and officials were potentially in line for a bribe. Each such payment required the authorisation of two M&J directors.
118. Payments allocated against the GDF did not relate specifically to stages of contracts in progress. The SFO says that they were obviously made with the intention of securing and maintaining those contracts when it was deemed prudent to do so. It is accepted by M&J that in creating and making payments from this fund corrupt payments would be made to public officials in order to affect the decision making process in favour of M&J. Thus payments were made for a variety of purported purposes to a variety of ministers and officials. Some of those purposes were self-evidently unrelated to M&J’s legitimate business such that the payments can best - and, indeed, only - be described as bribes. Not only were the bribes overt, so too was the means of collection on the part of the Ghanaian ministers and officials, most of whom had UK bank accounts. Some, indeed, visited the UK in order to collect their payments in sterling.
119. During the 1990’s M&J entered into three principal contracts with the Ghanaian Ministry of Roads and Highways (“MRH”) for the provision of bridges: Priority Bridge Programme Number 1, worth £14.5 million, was agreed in 1994; Priority Bridge Programme Number 2, worth around £8 million, was agreed in 1996; and the Feeder Roads Project, worth £3.5 million, was agreed in 1998.
120. Throughout the relevant period, and until the general election in 2000, the NDC formed the Government of Ghana and many of the GDF payments were directed to its members. Thus the then Minister at the MRH, Dr. Ato Quarshie, received a cheque when he visited London in July 1995 in the sum of £55,000 for “contract consultancy”. The cheque was drawn on M&J’s Clydesdale Bank account at the Victoria branch in Buckingham Palace Road, and signed by Director A, and another M&J director at that time. Director A also faxed the bank instructions to enable Dr. Quarshie to cash the cheque.
121. The payment to Dr. Quarshie and the following payments are but examples of a wider-ranging series of bribes to various ministers and officials, which will be set out in a schedule. Even relatively junior officials were the willing recipients of bribes. In 1996 Saddique Bonniface was the ECGD desk officer in the Ministry of Finance (he was recently until the change of government a highly placed politician within the Ghanaian administration). He had a bank account at the National Westminster Bank in Rickmansworth. On 29 February 1996 Saddique Boniface received a transfer of £10,000 from M&J to an account at Barclays Bank Plc in Watford. On 29 October 1996 the same account received a transfer of £13,970 from M&J. On or about 29 October 1996 Amadu Seidu, the Deputy Minister at the MRH, received £5000 in his Woolwich account held in St. Peter Port, Guernsey and Dr. George Yankey the Director of Legal and International Affairs at the Ministry of Finance, received £10,000 in his Midland Bank account in Hill Street, London W1; and Edward Lord Attivor, the ex minister at the MRH, also received £10,000 in his London bank account. This was the same branch of the Clydesdale Bank which was used by M&J. Authorisation from M&J directors for each of these transfers was requested by Director D. Amadu Seidu received a further £5,000 on 7 March 1997, the same date on which Saddique Bonniface received a further £2,500. The latter two transfers were authorised by Director B.
122. Mr. Bonniface’s son was a student at Exeter University, where, on or about 26 March 1998, he received a cheque from M&J in the sum of £500. Although this is a relatively small sum it is indicative of the nature of the corruption M&J was then practising: it is a payment which could have no conceivable legitimate commercial purpose.
123. M&J's payments to Dr. Yankey were not confined to the payment on or about 24 October 1996, since his Hill Street account received £5,000 on 26 August 1998 from M&J. Dr. Yankey was subsequently convicted in Ghana of conspiring to willfully cause losses to the state and served a prison sentence, along with Kwame Peprah. Their convictions cannot be directly related to payments from M&J, but reflect the culture of government corruption at the time, a culture with which M&J was only too willing to engage.
124. From December 1994 to 18 August 1999, M&J used the GDF and associated accounts to pay bribes directly to named Ghanaian public officials totaling £470,792.60.
125. None of the payments set out above, obviously, could be said to have anything remotely resembling a legitimate commercial purpose. Thus M&J was able to engage in wholly corrupt business practices without any effective level of external scrutiny being applied. Plainly, those who governed and directed the affairs of M&J were responsible for arranging and authorising payments which, no matter they were eagerly sought and accepted, were considered vital in securing M&J’s business in a developing nation – at the expense of those least able to avoid the expenditure that is inevitably involved in the making of corrupt payments: the people of Ghana.
IX: M&J’s INTERNAL INVESTIGATIONS
126. The counts on the indictment are in one sense specimen counts. They fully reflect the defendant Company’s criminality in the two jurisdictions concerned. However, during the course of the investigation thus far, indicators have emerged to the effect that corruption has been practised in other jurisdictions.
127. The Company’s solicitors Herbert Smith LLP, have been instructed by M&J’s present board to instigate an internal investigation into suspected corruption practiced by M&J under its previous directorial and managerial regime.
128. Their investigations are ongoing. Before they have been completed, what was initially revealed by the Company’s investigations has caused the Company to come forward and make disclosures to the SFO.
129. Of necessity the investigations have been limited to a review of Company documentation and interviews of current Company employees. It follows that the internal investigations are incapable of inquiring into foreign bank accounts, the activities of foreign agents and the like – which are matters which would ordinarily be the subject of MLA requests.
130. These investigations have revealed other corruption indicators. Some of these might not necessarily be provable cases of corruption in this jurisdiction or at all. The SFO is not in a position as of this date to determine with certainty whether charges could be brought in all or the majority of cases.
131. M&J accepts that in order to establish and secure its business abroad, it appointed agents to act on its behalf in the various countries where it was seeking to win contracts to supply bridges. Commission fees paid to local agents ranged from contract to contract and by jurisdiction. In a number of jurisdictions; Jamaica, Ghana, Mozambique, Bangladesh, Madagascar and Angola M&J did not pay all those commission fees to its agents but in some cases it also used some of the funds set aside for commission to make direct payments to public officials. Those officials were either responsible for or involved in the allocation of contracts to build bridges.
Angola
132. During the 1990's M&J entered into a number of contracts with the Angolan Government for the provision of bridging and associated services through which it derived sales revenue worth in total approximately £6m.
133. In a summary document prepared by a M&J employee it records that there have been contracts and revenue in every year from 1991 to 1998 totalling £6,145,000. The document records that the product sold was the C200 EW with “a few Hydromasters” and that in 1997-8 the contracts were supported with Swedrelief (funding provided by a Swedish Government aid body that is involved with U.N. projects).
134. A Mr Antonio Gois was an official at the Angolan State owned entity, Empresa Nacional des Pontes (National Bridges Company), and appears, at the relevant time, to have been the direct contact for M&J along with another public official, Joao Fucungo, also from the same department. Both Mr Gois and Mr Fucungo appear to have held the position of Director of the Empresa Nacional Des Pontes. Details as to the exact dates of their Directorships and their specific roles in the department are not available.
135. In relation to Angola, in the 1990's M&J had an Export Agent's Commission Card in the name of a company called Servicios Bella. Details in relation to the incorporation (including country of incorporation), directors, and ownership of this company are not available. At that time it was believed generally by M&J that Servicios Bella was owned by or was for the benefit of Mr Gois. Payments made to Servicios Bella were made to a French bank account.
136. Manager C was the M&J employee with the primary responsibility for sales in Angola.
His position in M&J has already been set out at para 58 above (in relation to Jamaica).
Manager C requested M&J to remit commissions due under Angolan contracts to Servicios Bella's account at the Banque Transatlantique in Paris.
137. Details of the payments made to the French bank account of Servicios Bella are set out in the table below:
Date | Amount in US $ | GBP equivalent (where known) |
23.11.1993 | 298,373.22 | |
15.12.1993 | 348,816.81 | |
28.04.1994 | 30,000.00 | |
09.12.1994 | 44,664.62 | 29,003.00 |
09.02.1995 | 50,000.00 | 32,239.94 |
11.03.1995 | 67,246.51 | 42,029.07 |
10.04.1996 | 119,225.25 | 77,925.00 |
30.08.1996 | 171,795.22 | 112,400.69 |
08.05.1997 | 49,663.60 | 31,039.75 |
05.08.1997 | 27,593.41 | 17,257.12 |
10.11.1998 | 50,073.58 | 31,295.99 |
Total | 1,257,452.22 |
138. In relation to Angola, requests for authorisation of payments originated from Manager C specifying that the amounts should be deducted from the commission account. In some cases, requests were made by Manager C based on demands that he claimed were made by Mr Gois.
139. During 1993 calendars, diaries and other promotional gifts worth £3,124.80 and US $2,208.51 were paid for in the UK by M&J and appear to have been provided for the benefit of Mr Gois. In a faxed handwritten letter dated 24 November 1993 from Manager C to the Office Manager; a Director of M&J and others he states: “Please go ahead + purchase the two Land Rover for Gois from 2nd C payment invoice from Hull, Blyth with this fax. Try + establish if Land Rover are imed avail + advise me E.T.A.”
140. Two Land Rover Defenders costing in total £28,646 were then purchased in the UK during 1993 and shipped to Angola for Mr Gois' benefit. In 1994, further promotional gifts worth £974 were paid for by M&J in the UK.
141. In one fax to Director E dated 1 February 1995 Manager C writes: “Further to our telecon I have been chased by G on several occasions for a transfer of 50k U.S. as an advance for C for U.N. order. As this is a firm U.N. order I recommend we comply with his request immediately. He will not accept downgrading his C from 15 to 12.5 as 15 was the amount 1st agreed. As we are talking about a further 5 m U.S. package I’m not inclined to argue. Pls advise what info you have on a fund the Angolan’s are negotiating with European Development Fund”
142. On 3 February 1995 further clarifying information was provided in a memo to Director A concerning outstanding Angola orders which included a completed order for Hydromaster units for which payment had been received in full from the Angolan government and a pending order for various C200 bridges for the U.N’s agency, the World Food Programme. The memo attached a copy of the abovementioned fax from Manager C.
143. The US $ 50,000 payment was made to Servicios Bella and authorised by Director A and Director B.
144. On 22 February 1995, Director A authorised a M&J employee visiting Angola to take US$ 3000 cash for “local expenses”. These monies were paid to Mr Gois on 27 February 1995.
145. In addition, $13,000 was paid to an account at Citibank in Berkeley Square to a company called Unimedia Ltd in June 1997. This appears to have been a bribe for Mr Gois' benefit.
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