Supreme Court gives five reasons why Auditor-General can’t surcharge Zoomlion

The Supreme Court has explained that the Auditor-General was wrong when it surcharged a private company, Zoomlion GH₵189 million.

The judgment obtained by theghanareport.com said the law allows the A-G the power to surcharge persons holding public offices, a category which Zoomlion does not fall under.

Background

On October 29, 2018, the Auditor-General issued a charge of GH¢184 million against a waste management company, Zoomlion.

The Auditor-General said it found that Zoomlion failed to execute fumigation contracts. He described the transaction as unlawful and demanded a refund from the waste company.

Zoomlion challenged the surcharge at the High Court but lost. He proceeded to the Court of Appeal and that was where an aspect of the case was found to require constitutional interpretation.

That aspect was “whether or not in the exercise of his functions under article 187(7)(b)(i) of the constitution, the Auditor-General can make a surcharge against a person other than a public officer.”

It is this case for interpretation referred to the Supreme Court on October 29, 2020 that has now been determined.

The judgment points and upholds four arguments put forward by Zoomlion’s legal counsel Osafo Buabeng.

The Appellant – Zoomlion

The Supreme Court upheld four reasons given by the Appeallant who insisted Zoomlion cannot be surcharged because it is a private person or entity.

Firstly, they argued that Article 187 (b) which outlines the powers of the Auditor-General says this power to surcharge and disallow must be on an expenditure found to have been made contrary to the law.

That Article 187 (7) (b) mentions three categories of persons who could be liable for surcharges and disallowances. They are (i) those responsible for incurring or authorizing the expenditure (ii) persons by whom sums of money ought to have been brought into account but which have not been duly brought into account, and (iii) persons by whose negligence or misconduct, a loss or deficiency of public funds has been incurred.

Zoomlion’s legal counsel referred to legislative history to explain why the phrase ‘any person’ does not refer to private companies. He relied on a case in Scotland Graham v. Lambie & Others to support his position that ‘the phrase ‘any person’ referred to public officers.

Second, Zoomlion’s legal team tried to also find out what was in the mind of the framers of the 1992 constitution when it first created the office of the Auditor-General which also first the phrase ‘any person’.

To do this, it traced the legislative history of Ghana’s 1992 constitution. First referring to the 1969 constitution which first used the phrase. This part of that law was reproduced verbatim in the 1979 constitution and re-enacted wholly in the 1992 constitution, article 187(7)b.

The 1969 constitution tasked the A-G to ‘deal effectively with people having the management of public funds.’

The third argument of the appellant was to confront the Supreme Court decision in OccupyGhana v. Attorney-General in 2018 which unleashed the Auditor-General from merely compiling the financial sins of government institutions to bite for the refund of monies wrongly expended.

That appellant stressed that in that judgment, “nowhere expressly or impliedly did this court hold that the mandate of the Respondent under Article 187 (7) (b) of the 1992 constitution extends to disallow and surcharge expenditures on private entities and individuals.”

Zoomlion’s legal counsel explained that there is a context in the OccupyGhana v Attorney-General decision that explains the judgment.

For that context, the legal counsel referred to a joint memorandum of issues that the two parties settled on during the case.

They reproduced portions of that memo which read “…..from the above discussions, it is apparent that the Auditor-General has an obligation to ensure that his powers of disallowance and surcharge are duly exercised by him pursuant to Article 187 (7)b of the constitution and that the public entity or officials directly affected by the exercise of his powers of disallowance and surcharge comply with his directives.”

Finally, the appellant also referred to a Supreme Court decision in CHRAJ v Attorney-General and Baba Kamara which the Respondent also used to back their case.

In that case, Baba Kamara objected to a CHRAJ investigation on him arguing that he was not a public officer and therefore not subject to the Commission’s powers of investigations as set out in Article 218(e) of the 1992 constitution.

But the Supreme Court ruled that there are two parts of Article 218(e) of the CHRAJ law that empowers the Commission to “investigate all instances of alleged or suspected corruption” which will in effect include private persons.

This is so that CHRAJ could get a total picture of the corruption which public officer has allegedly engaged in.

Only that CHRAJ after its investigations, cannot punish a private person involved.

It is the appellant’s case therefore that the respondent cannot use this case to say that a private person can also be surcharged under the powers of the Auditor-General.

Auditor-General – The respondent

They relied substantially on two cases OccupyGhana v. Attorney General and CHRAJ v Attorney-General and Baba Kamara.

They conceded that provisions of Article 187 (7)(b)(i) and (ii) which relates to the power of the office of the Auditor-General to disallow and surcharge does not affect private persons.

But in the next provision (iii) it does relate to private persons through whose “negligence or misconduct a loss or deficiency is incurred by the state.”

 

Supreme Court rules

The court said it agreed with the respondent’s concession that the sub-clauses (b)(i) and (ii) of Article 187(7) that indeed the Auditor-General’s powers did not apply to private entities or persons.

“We are in agreement with the Respondent’s counsel on this point and that in our view ought to have fully settled the question under reference.”

But after this, the Supreme Court said the legal team of the Auditor-General got it wrong to argue that sub-clause (iii)) relates to private persons or entities whose “negligence or misconduct a loss or deficiency is incurred by the state.”

The Supreme Court ruled that the question of negligence is not a matter before it but rather a constitutional interpretation of whether the A-G has the power to surcharge a person who is not a public officer.

It said the matter of negligence was settled by the High court which ruled there was no evidence of this negligence. The High court in January 2020 ruled that;

“From the totality of the evidence adduced….I am not satisfied that fraud has been established in this matter. The state institutions mentioned in relation to this matter may have been negligent or reckless in discharging their duties but fraud has not been established.”

The Supreme Court said the Auditor-General has not appealed this judgment by the High Court which also found no evidence of negligence or misconduct by Zoomlion.

On this basis, the Auditor-General’s powers to surcharge premised on that sub-clause (iii)) of article 187(7)(b) does not apply to Zoomlion.

The Supreme Court said the “decision of this court in the OccupyGhana case ought to be understood with the context of the issues settled for determination.”

Those issues which the Supreme Court settled for determination were;

1. Whether or not the Auditor-General fully discharges his constitutional obligation simply b auditing and pointing out financial irregularities in the accounts of a public entity
2. Whether or not the Auditor-General has an obligation to ensure that his powers of disallowance and surcharge duly exercised are complied with by the public entity or official directly affected by the A-G’s exercise of his power of disallowance and discharge.

The Supreme Court said it was a “misconception” on the part of the respondent to rely on a portion of its judgment in the OccupyGhana case to justify the surcharge against Zoomlion.

Portions of the judgment reads;

“…henceforth, the Auditor-General shall take steps to recover the amount unlawfully expended from the person or persons who incurred and or authorised the disallowed
expenditure.
2. Secondly, the Auditor-General shall also take steps to recover the amount from
the person or persons by whom the amount ought to have been brought into
account.
3. Thirdly, the Auditor-General shall also take steps to recover the value of the loss
or deficiency from the person or persons by whose negligence or misconduct the
losses or deficiencies were incurred, (whether or not the person is a public
servant).”

The use of the word persons in surcharging Zoomlion is wrong because, the judges said, the context was different.

The court then moved to the CHRAJ vrs Attorney-General and Baba Kamara who was peeved by CHRAJ’s decision to investigate him in a corruption probe.

Baba Kamara argued that CHRAJ did not have any power to investigate private persons and quoted Article 218 which empowers CHRAJ to “investigate all instances of alleged or suspected corruption and misappropriate of public monies by officials and to take appropriate steps, including reports to the Attorney-General form such investigations.”

But the judge sitting on this matter ruled that  CHRAJ could investigate a private person “whereas such investigation of a private person is necessary in order to expose the total picture of the corruption in which the public official is alleged to have participated”

The Supreme Court said the respondent could not rely on this judgment in the case against Zoomlion because the Baba Kamara case relies on “an entirely different article of the constitution.” The court said CHRAJ has investigative powers on private persons while in the case of the Auditor-General his powers are more than investigative. They are punitive.

“The issue provoked in the CHRAJ V Attorney General & Baba Kamara case and the question referred for determination by this court are therefore strikingly dissimilar not only with respect to the constitutional provisions under review but on the scope of powers conferred on CHRAJ and the Auditor-General under the constitution.”

Conclusion

The response to the question referred to this court by the Court of Appeal is that, in the context of the facts of this case, the Appeal is that, in the context of the facts of this case, the Appellant is not amenable to the power of the respondent under Article 187(7) b(i). Neither will it be under sub-clause b(ii) and b(iii) the latter which was urged on us by counsel for the respondent. The Court of Appeal is directed to determine the appeal accordingly”

Panel of judges; I.O Tanko Amadu, V.JM Dotse, Y. Appau, G. Pwamang, S.K Marful-Sau, M.Owusu, C.J Honyenuga.

Counsel for Appeallant: O.K Osafo-Buabeng

Counsel for Respondent: Richard Agbotame