Kotoko strip K.K Sarpong naked in court defence.
The Kumasi Asante Kotoko Sporting Club Limited says it is entitled to recover, at least, GH¢143,581.00; USD$114,521.00 and 100.000 Euros) from its former Chief Executive Officer, Dr. K.K. Sarpong, during his tenure of office.
This was contained in a statement of defence filed by the Porcupine Warriors who have been dragged to the Kumasi High Court, Commercial Division, by its former CEO.
The Chartered Accountant and businessman, Dr. Sarpong, in a suit dated 31st March 2015, is claiming the sum of GH¢536,247, being an outstanding loan given the defendant by the plaintiff as at 31st July, 2013, and interest thereon at the agreed rate of 15% from 1st January, 2011 until date of final payment.
GH¢20,000 loaned to the defendant by the plaintiff for the purchase of the Brazilian player, Da Silver Lima Hermes, and interest thereon from 1st August, 2013 until date of final payment, and costs including the plaintiff’s legal fees and expenses.
STATEMENT OF CLAIM
In his statement of claim, Sarpong avers that at the time he took up the appointment as the Executive Chairman of the club, the defendant was confronted with serious financial difficulties, and by a resolution of the Board, the plaintiff, together with other directors of the defendant, were requested to advance various sums of money as loans to the defendant, which it used, inter alia, to pay its players, and also meet other obligations.
The plaintiff further avers that the defendant’s Board of Directors further resolved that loans given by directors shall be paid with interest at 15% per annum. The plaintiff says that the sums advanced as directors’ loans were duly acknowledged and receipted by the defendant.
To run the defendant effectively, the plaintiff continued that he worked hard to secure corporate sponsorships for it. The plaintiff avers that during his tenure, the defendant won the National Premier League twice in succession, and was twice runner up in the Football Association (FA) Cup.
According to Sarpong, the defendant’s audited accounts for 2011 and draft accounts for 2012 both confirmed that it was indebted to him and other directors. He noted that as at his exit from the defendant, the extract of balances, as prepared by the defendant’s accountant, were as follows; K.K. Sarpong (Dr.) GH¢536,247; Alhaji Abu Lamini GH¢110,280; Agnes Osei GH¢30,000; E.A. Owusu Ansah GH¢4,030. and Jerry Asare GH¢5,000.
The plaintiff further avers that he also invested the sum of GH¢20,000 for and on behalf of the defendant club for the purchase of a Brazilian player called Da Silver Lima Hermes.
The plaintiff further avers that although as at 31st July, 2013 the defendant owed him GH¢556,247, it has failed and or refused to pay its just debt, repeated demands notwithstanding.
According to Sarpong, apart from the specific sums stated above, there were some expenses he made on the defendant, out of his desire to see defendant recapture its past glory that do not form part of the monies being claimed by him.
The plaintiff generally avers that the defendant intends not to pay the sums of money owed him, as all demands made to it have proved futile, unless compelled by the court to do so.
He is, therefore, pleading for an order for the recovery of the sums of: GH¢536,247 being an outstanding loan given the defendant by the plaintiff as at 31st July, 2013, and interest thereon at the agreed rate of 15% from 1st January, 2011 until date of final payment.
GH¢20,000.00 loaned to defendant by plaintiff for the purchase of the Brazilian player, Da Silver Lima Hermes, and interest thereon from 1st August, 2013 until date of final payment, together with costs, including the plaintiff’s legal fees and expenses.
STATEMENT OF DEFENCE AND COUNTER-CLAIM
In its statement of defence, the Asante Kotoko Football Club denied paragraph 1 of the plaintiff’s statement of claim in part, particularly, that the plaintiff is a chartered accountant and a business executive, and put him to strict proof of this claim.
The defendant shall in further response to paragraph 1 of the statement of claim contend that the plaintiff’s claim to be a chartered accountant or a business executive raises a serious question about the decisions and actions he took on behalf of the defendant while engaged in the affairs of the defendant herein.
The defendant further denies paragraphs 3,4,5,6,7,8,9,10,11,12 and 13of the plaintiff’s statement of claim, and shall put the plaintiff to the strictest proof on each of the averments therein contained.
The defendant says in further response to paragraph 3 of the statement of claim, that though plaintiff may have had no cash salary as the club’s top management officer, the colossal status, exposure, influence, allowances, benefits and opportunities of the position enjoyed, not just by him alone, but even others such as his associates and relations around him, became phenomenal and glaringly obvious to all.
The defendant says that relative to most going concerns, its finances were not worse, but rather normal at the time the plaintiff joined the fold of its management, contrary to the plaintiff’s claim.
The defendant says in further response to paragraph 4 of the plaintiff’s statement of claim that its board records/books do not reflect the said resolutions upon which this whole suit is based, and the defendant avers that any such resolutions of a limited liability company lawfully and or regularly passed in accordance with law, ought to be borne by the company’s cooperate records.
“The defendant shall thus contend that if, at all, any such resolutions were unlawfully passed, and same, were dishonestly contrived clandestinely to serve plaintiff’s personal motives and to overreach the larger interest of the defendant.
“The defendant shall, therefore, say that any such loan contracts with the plaintiff and others like him, premised on the said unlawful board resolutions, are void ab initio.
“The defendant says that the plaintiff and his fellows, as the very persons directing the affairs of the defendant entity at the time, ought not to be the same persons (after determining that defendant needed loans) to lend those monies from their own pockets at exigible rates of interest bargained, agreed and fixed by they themselves, without any formal recourse or documented approval from the defendant’s shareholders(s) and/or owners(s).
“The defendant says that worstof all, this same plaintiff and his fellows, again, turned around to allegedly receive the loans he purportedly lent to the defendant, and thereafter, purports to have expended same in the name of the defendant, only for him to return moments later to unconscionably seek repayment of this same alleged loan, together with his own self-imposed interest.
“The defendant shall say that the said loans procedures, therefore, adopted by the plaintiff, if at all, violates the fiduciary duties of outmost good faith, good conscience, candour trust and to avoid conflict of interest imposed on company executives such as the plaintiff herein by law, and same, are thus unenforceable against the defendants in law by the plaintiff and/or his named fellows.
“The defendant avers that basic laws and rules relating to corporate board meetings, including calls and invitations to attend such meetings, as well as the taking and keeping of minutes/records, were all flagrantly ignored by the plaintiff and his fellows while involved with the management of the defendant, perhaps so as to frustrate periodic accountability and or auditing of his stewardship.
“The defendant repeats the above averment, and says that consequently, notable board members and directing minds of the defendant were conspicuously missing from critical board meetings such as that in issue, allegedly called to deliberate critical financial issues of the defendant, while the plaintiff’s cronies and other personalities, who had never been appointed as defendant’s board members, attended such meetings in want of lawful authority or mandate.
“The defendant says that in a number of instances, such unqualified attendants illegally assumed statutorily circumscribed duties as board and company secretaries, all in a calculated attempt to overreach the defendant.
“The defendant shall, therefore, contend that any such meetings, as well as the alleged resolutions, and, indeed, the alleged loan contracts, resulting there from are all illegal, void and of no moment in law.
“The defendant avers that, to date, the defendant’s external auditors have been unable to finalise and file the audited year by year accounts of the defendant for the period plaintiff was at post, substantially, because plaintiff has failed, or been unable to furnish the auditors with documentary proofs and explanations for the questionable discretions exercised by the plaintiff in particular, and his administration in general.
“The defendant avers that unaccounted monies variously siphoned out of the defendant’s coffers at the direction and autocratic dictates of plaintiff on the pretext of director’s directives/withdrawals, far exceeds the sums herein claimed in his suit by this same plaintiff.
“The defendant repeats the immediately preceding paragraph, and says that among many others, such monies which were taken out on alleged grounds by plaintiff (or his mandated representatives), but which remain unaccounted for with requisite documentary proofs, even to date, include, but are not limited to the following.
“Alleged transport expenses of seventeen thousand and twenty-one United States dollars (US$17,021.00) paid to plaintiff and one of his associates, Mr. Kwame Baah-Nuako, via bank transfers between December 2012 and March 2013, for which plaintiff alleges that receipts on how they were spent are missing.
“Alleged transport and incidental expenses on Mr. Kwame Baah-Nuako, one Patrick Ofori and plaintiff himself, between July 2012 and June 2013, in the range of seventy thousand five hundred and eight-one Ghana Cedis (GH¢70,581.00), in respect of which payments, plaintiff claims to have “mixed up” the receipts on how they were used among his personal papers.
“Inexplicable unilateral alleged payments plaintiff described as “Protocol Payments” on behalf of the defendant, in excess of GH¢13,000.00 without any board or shareholder(s) approval, but of which he has failed to provide corresponding receipts for.
“Payments to faceless personalities of the sums of USD$10,000.00, which plaintiff described as “Facilitators Expenses” in respect of a player, Yaw Frimpong’s transfer to TP Mozembe, even after Feyenord Academy had lawfully been paid its due of 35% of the transaction sum.
“Alleged payments of USD$22,500.00 and USD$15,000.00 respectively to an entity plaintiff described as “Westone” on the basis of a 15% commission(s) on a cooperation fund in respect of the defendant’s transaction with Atletico Petroleous De Luanda, without any supporting records.
“Various alleged payments of 10% on all MTN monthly sponsorship funds to an alleged agent at the sole discretion of plaintiff without any supporting records of the role played by such agent(s). The total resulting losses suffered by the defendant over the years, far exceeds the sum claimed by the plaintiff in this suit.
“The defendant says that the plaintiff, during his reign, ran a translucent system of player transfer that disabled even his fellow directors from appreciating the financial consequences of his transfer transactions for the defendant, which consequences were predictable for his eventual personal benefit. Notable among these include the following:
“The plaintiff caused the defendant, for example, to lose over 100,000.00 Euros to K.P. LEGIA Warszawa SSA of Poland, after the polish team kept the defendants former player, Albert Bruce, in the 2011/2012 season, after his loan spell in Poland expired.
“In similar vein, rather than the well-known club to club transfers, the plaintiff unilaterally transferred five ripe players of the defendant, namely: Regan Obeng, Prince Dumfeh, Harif Mohammed, Owusu Ansah Kontoh and Kwame Boateng to an agent for various sums of money, payable to the defendant by the said agent. “Strangely, the plaintiff further agreed with the same agent to further deduct and retrain 15% of each of the monies they were to pay to defendant, in favour of the agent’s local representative in Ghana. This incident caused the defendant to lose over USD$25,000 without any justification.
“Where a player seeks to leave the club ahead of the expiration of his contract, the new club is obligated to negotiate and pay a good sum for the player’s release. In the case of Abbdul Samand Oppong, however, the plaintiff negotiated with the player to rather buy himself out from the “hands” of the defendant for a paltry sum as GH¢20,000.00, so as to become a free agent and negotiate his own deal with the new club, ES Sportive of Algeria. Even in these circumstances, the plaintiff has failed to account for the GH¢20,000.00 the player was to have paid to the defendant.
“Jordan Opoku was transferred to KS Dimamo of Tirana in Albenia by plaintiff, and yet, plaintiff has refused to make any records on this transfer available to the defendant. The defendant only had a wind of this after plaintiff reported his disagreements with the Albania club over the money to FIFA, which, in turn, sent word to the Ghana Football Association to call on the defendant to provide details of the claim. Plaintiff has, to date, refused to provide the said details and monies raised from the transfer, leading to losses of undisclosed sums to the defendant.
“The defendant says, as regards recruitment of players, that contrary to the defendant’s practices and procedures, the decision and, or discretion, to engage the self-acclaimed Brazilian, Da Silva Lima Hermes, was exclusively that of the plaintiff, with no hand or role what-so-ever by the defendant’s technical department (made up of its coaches), which is responsible for demanding and recommending which player ought to be signed on by the defendant to its Board.
“The defendant repeats the above paragraph, and says that like many other similar recruitment transactions during plaintiff’s term, there is no traceable lawfully documented board decision in support of the alleged payment to the Brazilian in defendant’s records, and it shall be contended that no such payment was ever lawfully made by or on behalf of the defendant to warrant a justifiable refund.
“The defendant avers that by the plaintiff’s decision to unilaterally engage this Brazilian, without recourse to due process and to the technical officers of the defendant, the said Brazilian could not fit into the defendant’s team and scheme of things.
“The defendant says that this Brazilian had to be sent back at an avoidable huge expense to the defendant, and yet, the plaintiff has neither accounted for nor paid any price for his poor unilateral exercise of indiscretion, leaving defendant saddled with yet another needless expense on its records.
“The defendant repeats the preceding paragraphs, and adds that in similar, circumstances, defendant has been made to lose GH¢15,000 to its former player, Nathaniel Asamoah, by reason of plaintiff’s wanton and reckless dissipation of defendant’s financial resource.
“The defendant says that between the plaintiff and his named associate, Mr. Baah-Nuako, they led defendant’s team to Tanzania in about December 2011 at the invitation of Tanzania authorities.
“The preceding paragraph is repeated, and the defendant says that the plaintiff has up to date withheld vital details and records of the finances relating to the trip from the rest of the board, management, and, indeed, the entire club, and all defendant has had so far from this trip, was when on the 8th of December 2011 a paltry sum payment of USD$12,500 was paid to defendant as “part” payment deposit by way of appearance fee in Tanzania. To date, the plaintiff has refused to make the records and the rest of the payments available to the defendant.
“The defendant shall, therefore, say that a cursory review of how plaintiff conducted its finances entitles it to recover in the very least One hundred and forty-three thousand five hundred and eight-one Ghana Cedis (GH¢143,581.00); one hundred and fourteen thousand, five hundred and twenty-one United States Dollars (USD$114,521.00), and one hundred thousand Euros (€100.000.00) from the plaintiff besides general damages and cost as the Honourable Court may order. “The defendant says that the above fact notwithstanding, the plaintiff unilaterally ordered various payments in excess of USD$25,000, by way of travel expenses to Tanzania, payable to a travel agent, Mr. Baah-Nuako, and the plaintiff himself at the expense of the defendant.
“The defendant shall thus contend that the plaintiff’s claims are mathematically contradictory, and besides, he cannot seek to profit from his own wrongdoings and defaults, as he now seeks to do. The defendant avers that plaintiff is not entitled to any of his claims, and or at all.
“The defendant says that the plaintiff’s action/suit is thus unconscionable, totally misconceived, simply frivolous, vexatious, bereft of any legal merit, and same ought to be thrown into the dustbin of legal inconsequentials.”
The defendant repeats the averments above, and counter-claim against the plaintiff as follows:
A declaration that plaintiff breached variously, his fiduciary duties, responsibilities and obligations of due care, reasonable diligence, good faith, good conscience, trust and candor towards affairs of the defendant during his term as Executive Chairman, leading to huge financial losses to the defendant.
A declaration that the purported board meetings and resolutions granting leave to the plaintiff and others to “lend” and “receive” their personal monies to the defendant as loans at interest rates fixed by they themselves, without recourse to the shareholder(s) and a lawfully constituted board of the defendant, are illegal and void ab initio.
A declaration that the resulting and/or purported loans premised on the said resolutions if, at all, were equally made in breach of law and fundamental principles of cooperate governance, and some are void ab initio, and thus unenforceable against the defendant.
An order directing the plaintiff to account financially to the defendant for the period of his stewardship.
An order for the recovery of the various sums of money lost to the defendant by reason of the plaintiff’s said breaches and/or defaults. General and/or special damages for breaches of fiduciary duty, and costs, including defendant’s legal fees expended on this suit.
Any other relief(s) deemed appropriate by the Honourable Court in favour of the defendant against the plaintiff.