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Constitutional law - Invoking
the jurisdiction of Supreme
Court – Interpretation -
Article 130(2) of the
Constitution - Negligence
nor misconduct - Functions of
the Auditor General under
article 187(7)(b)(i) of the
Constitution - Surcharge against
a person other than a public
officer - Whether
an enactment was made in excess
of the powers conferred on
Parliament -
Whether or not the
Auditor-General fully discharges
his constitutional obligation
simply by auditing and pointing
out financial irregularities in
the accounts of a public entity
- 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
Auditor-General’s exercise of
his power of disallowance and
discharge .
HEADNOTES
The Respondent, in the exercise
of his constitutional function
pursuant to article 187(7)(b) of
the Constitution and Regulation
39 of the
Financial Administration
Regulations 2004 (L.I.1802),
caused to be served on the
Appellant (a private company)
notices of specification and
certification of disallowance
and surcharge. This arose after
the Respondent had carried out
an audit of the accounts of the
National Health Authority (NHIA)
an organization established
pursuant to the National Health
Insurance Act 2003 (Act 650) and
which falls within the purview
of the class of public
institutions or corporations
provided for in article 187 (2)
of the Constitution. It emerged
from the audit that public
officers of the NHIA had
approved and authorized payments
of various sums of money from
public funds to the Appellant
for the discharge upon
performance of a contract
between the parties. In the
opinion of the Respondent, the
payments to the Appellant were
done “without following due
process”. Consequently, the
Respondent, satisfied that a
case for which he can exercise
his power of disallowance and
surcharge arisen, demanded on
the Appellant the refund of the
total sum paid Aggrieved by the
demand made on it by the
Respondent, the Appellant
appealed to the High Court and
sought an order to set aside the
findings the High Court rather
found that the various public
officers who handled the
processes of payment to the
Appellant “might have been
negligent or reckless”
in discharging their duties and
held that the appeal must fail
and consequently dismissed same
with the result that the
disallowance and surcharge made
on the Appellant was thereby The
Appellant appealed
HELD
In conclusion, having found that
the provisions of article 187(7)
b(i)(ii) are not applicable to
the Appellant as conceded by the
Respondent’s counsel, we find
that, contrary to what the
Respondent’s, counsel has urged
on us, the findings and
conclusion of the High Court in
its judgment not having found
the Appellant liable or guilty
of any wrong doing whatsoever,
the provision of sub-clause
b(iii) of article 187(7) cannot
apply to the Appellant having
been insulated therefrom by the
findings of the High Court. 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 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.
STATUTES REFERRED TO IN JUDGMENT
1969 Constitution
1979 Constitution
1992 Constitution
National Health Insurance Act
2003 (Act 650)
Financial Administration
Regulations 2004 (L.I.1802)
Financial Administration Decree
1967 (NLCD 165)
CASES REFERRED TO IN JUDGMENT
Republic V. Special Tribunal Ex-parte
Akosah [1980] GLR 592
Graham V. Lambie & Others [1905]
SLR 42, 615, June 1905
Re Dickson, Re Local Government
Act 1933 [1948]2KB95, CA,
Lloyd Vs. Mcmahon [1987] AC 625
HL,
Magill V. Porter [2001] UKHL 67
(13th December, 2001)
Occupy Ghana V. Attorney General
[2017-2018] SCLRG 527
Commission on Human Rights and
Administrative Justice V.
Attorney General & Anor. [2011]2
SCGLR 746
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
AMADU JSC: -
COUNSEL
O. K. OSAFO-BUABENG FOR THE
APPELLANT/APPELLANT.
RICHARD AGBOTAME FOR THE
RESPONDENT/RESPONDENT.
JUDGMENT
_______________________________________________________________________________________________
AMADU JSC:-
INTRODUCTION
(1)
By reference from the Court of
Appeal dated 29th
October 2020, the
jurisdiction of this court
was
invoked in accordance with
article
130(2) of the Constitution,
for the determination of the
question “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”.
(2)
It is provided for under
articles 130(1)(a) and (b) and
130(2) of the 1992 Constitution
as follows:-
“130(1) subject to the
jurisdiction of the High Court
in the enforcement of the
Fundamental Human Rights and
Freedoms as provided in article
33 of this Constitution, the
Supreme Court shall have
exclusive jurisdiction in:
(a)
all matters relating to
the enforcement or
interpretation of
this constitution and
(b)
all matters arising as to
whether
an enactment was made in
excess of the powers conferred
on Parliament or any other
authority or person by law or
under this Constitution”.
Article 130(2) of the
Constitution provides that:
“(2) Where an issue that
relates to a matter or question
referred
to in Clause (1) of this article
arises in any proceedings in a
court other than the Supreme
Court, that court shall stay the
proceedings and refer the
question, of law involved to the
Supreme Court for determination;
and the court in which the
question arose shall dispose of
the case in accordance with the
decision of the Supreme Court”.
(3)
In the exercise of the
interpretation jurisdiction of
this court under Article 130(1)
and (2) of the 1992
Constitution, it is important to
examine what constitutes a
genuine and real question for
determination as was set out in
the case of the
Republic V. Special Tribunal
Ex-parte Akosah [1980] GLR 592
and 605 in which
the enforcement and
interpretation jurisdiction of
this court was invoked under
article 118(1)(a) of the
1979
Constitution which is in
pari materia with article
130(2) of the
1992
Constitution. There, the
test was set out as follows:-
“(a) Where the words of the
provision are imprecise or
unclear or
ambiguous. Put in another way,
it arises if one party invites
the court to declare that the
words of the article have a
double meaning or are obscure or
else mean something different
from or more than what they say;
(b) Where rival meanings have
been placed by the litigants on
the words of any
provision of the Constitution;
(c) Where there is a conflict
in the meaning and effect of two
or more articles of the
Constitution, and the question
is raised as to which provision
should prevail;
(d) Where on the
face of the provisions, there is
a conflict
between the operation of
particular institutions set up
under the Constitution and
thereby raising problems of
enforcement and of
interpretation.”
By way of admonition, the court
further stated what this court
has time without number
reiterated as follows: “On
the other hand, there is no case
of enforcement or interpretation
where the language of the
article of the constitution is
clear, precise and unambiguous.
In such an eventuality, an
aggrieved party may appeal in
the usual way to a higher court
against what he may consider to
be an erroneous construction of
those words, and he should
certainly not invoke the Supreme
Court’s original jurisdiction
under article 118. Again, where
the submission made relates to
no more than a proper
application of the provisions of
the Constitution to the facts in
issue, this is a matter for the
Trial Court (in the instant case
the Court of Appeal) to deal
with; and no case of
interpretation arises”.
(4)
THE FACTUAL BACKGROUND TO THIS
REFERENCE;
The facts of the dispute giving
rise to the instant reference
have been sufficiently set out
in paragraphs 5 to 14 of the
Appellant’s statement of case.
We shall refer to them briefly
with the view to establishing
whether or not as the Court of
Appeal has demanded, a real and
genuine question of
interpretation of article 187(7)
b(i) has arisen.
(5)
The Respondent, in the exercise
of his constitutional function
pursuant to article 187(7)(b) of
the Constitution and Regulation
39 of the Financial
Administration Regulations 2004
(L.I.1802), caused to be served
on the Appellant (a private
company) notices of
specification and certification
of disallowance and surcharge.
This arose after the Respondent
had carried out an audit of the
accounts of the National Health
Authority (NHIA) an organization
established pursuant to the
National Health Insurance Act
2003 (Act 650) and which falls
within the purview of the class
of public institutions or
corporations provided for in
article 187 (2) of the
Constitution.
(6)
The audit exercise carried out
by the Respondent covered the
period of January 2007 to April
2018. It
had emerged from the audit that
public officers of the NHIA had
approved and authorized payments
of various sums of money from
public funds to the Appellant
for the discharge upon
performance of a contract
between the parties. In the
opinion of the Respondent, after
carrying out an audit of the
NHIA books of accounts, the
payments to the Appellant were
done “without following
due process”.
Consequently, the Respondent,
satisfied that a case for which
he can exercise his power of
disallowance and surcharge under
article 187(7)(b) of the
Constitution has arisen,
demanded on the Appellant the
refund of the total sum of
(Ghc184,901,650.00) to be paid
into consolidated fund.
Aggrieved
by the demand made on it by the
Respondent, the Appellant
appealed against the decision of
the Respondent to the High Court
pursuant to the provision of
article 187(9) of the
Constitution and sought an order
to set aside the findings of
the Respondent which resulted in
the decision to disallow and
surcharge of the said sum on the
Appellant as contained in the
Respondent’s letter dated 29th
October 2018.
(7)
In determining the Appellant’s
appeal,
the High Court though not having
found any evidence of fraud nor
any wrong doing against the
Appellant in the transaction but
rather found that the various
public officers who handled the
processes of payment to the
Appellant “might have been
negligent or reckless”
in discharging their duties
further held that, the
Respondent having given the
Appellant the opportunity to be
heard before arriving at its
decision to disallow and
surcharge the said sum of
Ghc184,901,650.00 on it, the
appeal must fail and
consequently dismissed same with
the result that the disallowance
and surcharge made on the
Appellant was thereby confirmed
by the High Court.
(8)
THE APPELLANT’S CASE IN THE
COURT OF APPEAL
The Appellant appealed from the
decision of the High Court
aforesaid first under one
ground, and additional grounds
as follows:-
“(a) The judgment of the
Learned Trial Judge confirming
the
disallowance and surcharge of
Ghc184,901,650.00 made by the
Respondent against the Appellant
cannot be supported by the
evidence on record and same has
occasioned a grave miscarriage
of justice.
Additional ground (a) was
formulated as follows:-
“(a) By confirming the
Respondent’s decision to
disallow and
surcharge the sum of
Ghc184,901,615.00 on the
Appellant. The Learned Trial
Judge erred fundamentally in law
in assuming that the
Respondent’s power to disallow
and surcharge expenditure may be
applied to private persons such
as the Appellant.
PARTICULARS
“Endorsing the Respondent’s
power to disallow and surcharge
expenditure on private entities
like the Appellant.
(b) The enforcement of the
Learned Trial Judge’s decision
to
disallow expenditure incurred
and or authorized by public
officers and to surcharge the
expended sum of
Ghc184,901,650.00 on the
Appellant will unjustly enrich
the state and occasion a gross
miscarriage of justice.
(c) The decision of the
Respondent to disallow
expenditure
authorized and or incurred by
public officers and to surcharge
the said expenditure on the
Appellant is unfair,
unreasonable and a breach of
Article 23 of the Constitution”.
(9)
THE REFERENCE:
In the reference to this court,
the Learned Justices of the
Court of Appeal found that a
constitutional issue which
requires the exercise of the
jurisdiction of this court under
article 130(2) of the
Constitution has been provoked.
The Court of Appeal stated same
in the following words;
“The matter referred to the
Supreme Court requires a
determination of the proper
meaning and scope of Article 187
Clause (7)(b)(i) of the
Constitution and in particular
the question whether or not in
the exercise of his functions
under Article 187(7)(b)(i) of
the constitution the Auditor
General can make surcharge
against a person other than a
public officer”.
(10)
APPELLANT’S SUBMISSIONS
The Appellant’s submissions were
anchored on three legs. First,
that article 187(7)(b) has
narrowly circumscribed the scope
of the Respondent’s power while
in the performance of auditing
the institutions set out in
article 187(2) of the
Constitution before the exercise
of the power to disallow and
surcharge expenditure can apply.
It is submitted that by the
provision, of Article 187(7)(b),
the Respondent’s power to
disallow and surcharge must be
on expenditure found to be
contrary to law. It is further
submitted that in determining
that any expenditure is contrary
to law, the Respondent is
enjoined to establish the legal
procedures which have been
contravened and that the phrase
contrary to law ought to be
construed to include procedural
and substantive breaches or
both, before the Respondent
could arrive at a conclusion
that any expenditure is contrary
to law.
(11)
In confronting the question for
determination directly, it is
submitted on behalf of the
Appellant that article 187(7)(b)
contemplates liability for
disallowance and surcharge on
three categories of persons (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. Referring to
the provisions of Regulation 39
of the Financial Administration
Regulation 2004, (LI.1802),
which the Respondent alleged had
been breached by the public
officers who effected payments
to the Appellant, the Appellant
submits that the phrase
“any person” cannot be
construed to mean any other
person not categorized under
Article 187(7)(b)(i)(ii) and
(iii).
(12)
In support of this submission,
the Appellant has referred to
the legislative history of the
provision as it applied in the
courts of the United Kingdom for
guidance. According to the
Appellant, the underlying
rationale for the power to
disallow and surcharge
expenditure is to deter public
officers from engaging in
illegal expenditure of public
funds. Relying on the case of
Graham
V. Lambie & Others [1905] SLR
42, 615, June 1905,
a decision emanating from the
Local Government (Scotland) Act
1889, the Appellant argued that
as held in that case, the power
of recovery of any illegal
expenditure was not jointly and
severally recovered from the
county officers and members as
well as the private persons who
received those payments but
limited to the county officers
and members only. Thus,
according to the Appellant any
negligence or misconduct
referred to in the enabling
constitutional provision which
in the opinion of the Respondent
has been occasioned, can only be
construed to apply to the public
officers involved and not any
other private persons,
especially where there is no
evidence of negligence or
misconduct on the part of the
latter.
(13)
The Appellant has invited this
court to examine the application
of the provision in the English
jurisdiction and has referred to
the cases of: (i)
Re Dickson, Re Local Government
Act 1933 [1948]2KB95, CA, (ii)
Lloyd Vs. Mcmahon [1987] AC 625
HL, (iii) Magill V. Porter
[2001] UKHL 67 (13th
December, 2001) in
support of its contention.
(14)
The second leg of the
Appellant’s submission was a
trace of the legislative
history of the provision in
question by referring the court
to paragraph 594 of the
proposals of the Constitutional
Commission for the Constitution
of Ghana 1968 under which the
Second Republic came into
existence. The Appellant submits
that, in the report of the
Constitutional Commission which
drafted the proposals of the
1969 Constitution of Ghana, it
contained the first legislative
power conferred on the Auditor
General of Ghana to disallow
expenditure not made not in
accordance with law and to
surcharge those expenditures on
those responsible for incurring
or authorizing same upon the
coming into force of the
Financial
Administration Decree 1967 (NLCD
165). According to the
Appellant, these recommendations
which formed the cornerstone of
the provision in the
1969
Constitution under article
135(6)(b) was reproduced
verbatim in the 1979
Constitution under article
151(7)(b) and has been reenacted
wholly in article 187(7)(b) of
the 1992 Constitution.
(15)
The relevance of the historical
trajectory of the provision in
the defunct constitutions is to
facilitate an understanding of
the intention of the framers of
the Constitutions relative to
the necessity for giving the
Auditor-General constitutional
powers to disallow and surcharge
expenditure of public funds
which is contrary to law. In so
doing, the Appellant’s submitted
that reading from the proposal
of the Constitutional Commission
which drafted the 1969
Constitution and which first
created for the Auditor General
those powers, the words used in
the Commission’s report in that,
the provisions were arrived at
to strengthen the hands of the
Respondent “to deal
effectively with people having
management of public funds”,
is crucial in the interpretation
of the provisions of article
187(7)(b) of the 1992
Constitution.
(16)
The third leg of the Appellant’s
submission is an analysis of the
judgment of this court in the
cases of
Occupy Ghana V. Attorney
General [2017-2018] SCLRG 527
and Commission on Human
Rights and Administrative
Justice V. Attorney General &
Anor. [2011]2 SCGLR 746
which the Appellant submits are
distinguishable from the instant
case. It is argued for the
Appellant that in the decision
of this court in the Occupy
Ghana case, nowhere whether
expressly or impliedly did this
court hold that the mandate of
the Respondent under Article
187(7)(b) of the Constitution
1992 extends to disallow and
surcharge expenditure on private
entities and individuals. In
order to crystalize the argument
on this leg the Appellant has
reproduced for effect the two
issues settled in the joint
memorandum of issues in that
case in order for the said
decision to be understood and
applied within the context of
the issues determined by this
court and no more than that:
(17)
The Appellant submits that in
resolving these issues this
court delivered itself as
follows:- “…………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”. (page
567 of the report).
(18)
The Appellant submits further
that there are civil remedies
available in contract should any
person with the requisite
capacity be aggrieved with the
performance of a contract
entered into between the
Appellant and the Ministry of
Health for the benefit of the
NHIA. To that extent therefore,
the Appellant submits that in
the context of Article 187(7)(b)
of the 1992 Constitution, and
in the exercise of the
Respondent’s functions, the
Appellant cannot fall within the
purview of the “person”
contemplated by the provision.
(19)
With respect to the position of
this Court in the Commission
On Human Rights And
Administrative Justice V.
Attorney General & Baba Kamara
case (supra), where
the 2nd Defendant
therein took an objection to an
investigation on him by the
Plaintiff on the ground that he
is not a public officer within
the meaning of article 218(e) of
the 1992 Constitution, and
therefore, was not subject to
the investigative power of the
Commission. This Court in
upholding and giving effect to
the letter and spirit of the
Constitution dismissed the 2nd
Defendant’s objection and held
inter alia that he cannot
be insulated from the
Commission’s investigative
authority.
(20)
The Appellant contends that the
thinking of this court in the
above case was correct and
necessary in order to give
effect to the Commission’s power
to investigate private persons
whose conduct is invariably
connected to that of public
officials without which the
power of the commission to
investigate corrupt practices
would have become entirely
muted.
(21)
In distinguishing the power of
the Commission on Human Rights
and Administrative Justice
under article 218 and that of
the Auditor-General under
article 187(7) of the 1992
Constitution, it has been
submitted for the Appellant
that, while under article 218
the provision is in two parts
the first which empowers the
Commission “to investigate
all instances of alleged or
suspected corruption”
which will in effect include the
conduct of private persons, the
Commission also has the power to
investigate all instances of
“misappropriation of public
money by officials”
which clearly does not include
private persons and cannot by
any constitutional
interpretation be construed to
include private persons under
the purview of that provision.
(22)
The Appellant further argues
that from the reading of article
219 of the Constitution, it may
not have been necessary to imply
the words “private person”
into article 218 since Article
219(1)(d) on the special powers
of investigation by the
Commission provides that:
“the powers of the Commission
shall be defined by an Act of
Parliament and shall include;
(d)
to require any person to
disclose truthfully and frankly
any
information within his knowledge
relevant to any
investigation by the
Commissioner”.
Consequently, the Commission
could have investigated the 2nd
Defendant without the resort to
the purposive interpretation of
article 218 as resorted to by
this court in that case.
(23)
The Appellant argues further
that in contrast with article
218, article 187 ought to be
read as a whole within the
context of Part III of Chapter
13 of the Constitution by reason
of the very singular function of
the Respondent which is to audit
and report on the public
accounts of Ghana. To that full
extent therefore, the Respondent
has no constitutional mandate to
audit or investigate the
financial affairs of any private
entity or person who has
received payment from public
funds as consideration for the
discharge of a contractual
obligation. According to the
Appellant, there will be no
limitation to the functional
efficacy of the Respondent if
his powers are limited only to
the functions provided by the
Constitution. Therefore, the
power to disallow public
expenditure and to surcharge
same on “the person
responsible for incurring or
authorizing the expenditure”
flows directly from the
Respondent’s constitutional
function to audit the accounts
of public entities and
authorities within the class of
institutions set out under
article 187(2) of the
Constitution only, and not
private entities or persons.
Consequently a true and proper
interpretation of Article 187
(7)(b)(i)(ii)(iii) must exclude
implying private entities and
persons in the class.
(24)
THE RESPONDENT’S SUBMISSIONS
In his submissions, Learned
Counsel for the Respondent
conceded that the provisions of
article 187(7)(b)(i) and (ii) do
not from its text affect private
persons, the effect of which is
that the Respondent has conceded
that the answer to the question
under reference should be in the
negative. However, contrary to
the contention of the Appellant,
the Respondent submits that the
power to disallow and surcharge
expenditure under article
187(7)(b)(iii) includes private
persons through “whose
negligence or misconduct a loss
or deficiency is incurred by the
state”. The Respondent
relies substantially on the two
cases decided by this court in
Occupy Ghana V. Attorney
General (Supra) and
Commission On Human Rights
and Administrative Justice V.
Attorney General and Baba Kamara
(supra). In analyzing and
relying on the ratio
decidendi in the said cases,
the Respondent did not
demonstrate any negligence or
misconduct on the part of the
Appellant resulting in a loss or
deficiency to any funds as
provided under article
187(7)(b)(iii) which the
Respondent has strenuously urged
is applicable to the Appellant.
(25)
The Respondent summarized its
submission on this issue by a
self-interrogatory in the
following words. “To argue
that only public servants can be
surcharged under article
187(7)(b) will lead to absurdity
and cannot be the true intention
of the framers of the
Constitution. Indeed, in a
situation where a private person
through whose conduct or
negligence the state losses
funds or a deficiency occurs to
the state is immune from the
exercise of the Auditor
General’s power of surcharge
merely because he is a private
person, wherein lies the
principles of probity and
accountability?”.
(26)
We are mindful that the
Respondent’s statement of case
contains submissions on the
constitutional duty of
administrative officers to act
fairly, reasonably and comply
with requirements imposed on
them by law as provided under
article 23 of the Constitution.
The issue of the conduct of the
Respondent within the context of
article 23 is not an issue in
this reference and did not form
part of the question from the
Court of Appeal. We are of the
view that it is a matter which
appropriately belongs to the
litigation in the Court of
Appeal and we shall consequently
refrain from making any
pronouncement on same.
(27)
DETERMINATION OF THE QUESTION
It is provided under article
187(7) of the Constitution as
follows:-
“(7) In the performance of his
functions under this
Constitution or any other law
the Auditor-General-
(a)
shall not be subject to
the direction or control of any
other person or authority;
(b)
may disallow any item of
expenditure which is contrary to
law and surcharge-
(i) the amount of any
expenditure disallowed upon the
person
responsible
for incurring or authorizing the
expenditure; or
(ii) any sum which has not
been duly brought into
account, upon the person by whom
the sum ought to have been
brought into account; or
(iii) the amount of any loss
or deficiency, upon any person
by
whose negligence or misconduct
the loss or deficiency has been
incurred”.
Our task in this reference has
been narrowed down by the
position of the Respondent
relative to the question
referred for interpretation. As
we have observed the Respondent
in paragraphs 16 and 17 of the
statement of case conceded that
the provision of article
187(7)(b)(i) does not apply to
private entities or persons,
they not being public officers
responsible for incurring and
authorizing expenditure as
expressly provided for in
sub-clauses (b)(i) and (ii) of
article 187(7). 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.
(28)
However, after the concession,
Counsel for the Respondent has
submitted that the power of the
Respondent to disallow and
surcharge expenditure under
article 187(7)(b) is not limited
to only public officers but also
includes private persons and
strongly relies on the provision
of sub-clause (iii) of article
187(7)(b) to buttress his
point. We shall examine the
provision of sub-clause b(iii)
with the view to determining
whether or not upon the finding
and conclusion of the High Court
which absolved the Appellant of
the allegation of fraud and for
that matter any misconduct, the
said provision is applicable to
the Appellant.
(29)
In order to appreciate whether
or not there is any merit in the
contention of the Respondent’s
counsel on the effect of
sub-clause (b)(iii) of article
187(7), it is relevant to refer
to the judgment of the High
Court in Suit No.MSFT/02/2019
dated 31st January
2020 from which the appeal
emanated. In the said judgment,
the Learned Trial Judge found
and held as follows:-
“From the totality of the
evidence adduced and as
submitted by learned counsel for
the Respondent there are many
questions unanswered by the
Appellant which are essential to
establish their case per the
appeal herein.
However, 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.
I find that the issue of fraud
has not been established beyond
reasonable doubt as required by
law”.
(30)
On the strength of this finding
which the Respondent has not
appealed from, the Appellant
having been exonerated by a
court of competent jurisdiction
of fraud, and that court not
having found the Appellant
guilty of any wrong doing in
the nature of
negligence nor misconduct in
the course of the transaction
for which the payments were
made to it by the NHIA, cannot
be said to be amenable to the
Respondent’s constitutional
power under sub cause (b)(iii)
of article 187 there being no
such finding by the High Court.
Accordingly we hold that
sub-clause b(iii) of article
187(7) of the Constitution is
not applicable to the Appellant.
(31)
In view of the fact that the
Court of Appeal itself in the
reference of the question for
determination, and the parties
herein have referred to the two
previous cases decided by this
court, in Occupy Ghana V.
Attorney General (supra) and
(Commission on Human Rights &
Administrative Justice V.
Attorney General and Another),
we shall discuss the two cases
briefly in order to determine
whether or not as the Respondent
in particular has argued that
the ratio in the two cases
referred to are relevant and
applicable in the determination
of the question under reference
before this court.
(32)
In its submission, the
Respondent relies heavily on the
decision of this Court Occupy
Ghana V. Attorney-General
(Supra). Given the energies
expended by the parties in
discussing this case, the Court
will give it some attention. In
that case, the plaintiff, a
civil society organization
actively engaged in advocacy in
the areas of good governance and
anti-corruption invoked the
original jurisdiction of the
Court for the interpretation of
the constitutional provision
part of which is the subject
matter of this reference,
particularly, the provisions of
article
187 (7) (b) (i) (ii) and (iii)
of the Constitution 1992. The
plaintiff therefore sought the
following reliefs in the said
suit;
“1 That upon a
true and proper interpretation
of article 187 (7) (b) (i) of
the
of the Constitution, the
Auditor-General is bound to
issue a disallowance or
surcharge where there has been
any item of expenditure on
behalf of the Government that is
contrary to law, so that the
amount unlawfully expended is
recovered from the person who
was responsible for,
or authorised, the expenditure
disallowed.
2)
That upon a true and
proper interpretation of
article 187 (7) (b) (ii) of the
Constitution, the
Auditor-General is bound to
issue a disallowance and
surcharge where any person fails
to bring any sum into the
Government’s account, so that
that amount is recovered from
the person by whom the amount
should have been brought into
account.
3)
That upon a true and
proper interpretation of article
187 (7) (b) (iii) of the
Constitution, the
Auditor-General is bound to
issue a disallowance and
surcharge where the Government
suffers or incurs a loss or
deficiency through the
negligence or misconduct of any
person, so that the value of the
loss or deficiency is recovered
from that person (whether or not
a public servant).
4)
That the failure, refusal
or neglect by the
Auditor-General to ever issue
any disallowances and surcharges
in respect of (i) unlawful items
of expenditure, (ii) amounts not
brought into account, and (iii)
losses and deficiencies incurred
through negligence and
misconduct, as set out in
successive Reports of the
Auditor-General issued since the
coming into force of the
Constitution, are violations by
the Auditor-General of his/her
obligations under the
Constitution and
5)
That the Auditor-General
be ordered to issue
disallowances and surcharges to
and in respect of all persons
and entities found in successive
Reports of the Auditor-General
to have been responsible for or
to have authorised unlawful
items of expenditure, not
bringing sums into account, or
having caused loss or deficiency
through negligence or
misconduct, in accordance with
article 187 (7) (b) of the
Constitution.”
(33)
In a joint memorandum by the
parties, two issues were settled
for determination:-
1.
Whether or not the
Auditor-General fully discharges
his constitutional obligation
simply by 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
Auditor-General’s exercise of
his power of disallowance and
discharge.”
(34)
The court upon a thorough
discussion of the facts and
issues arrived at three
significant conclusions which
constitute the ratio derived
from the issues settled for
determination. They are:
“(i) upon a true and proper
interpretation of article
187(b)(i) of
the Constitution the Auditor
General is bound to issue a
disallowance and surcharge where
there has been any item of
expenditure on behalf of the
Government which is contrary to
law;
(ii) upon a true and proper
interpretation of article
187(7)(b)(ii)
of the Constitution the Auditor
General is bound to issue a
disallowance and surcharge where
any person fails to bring any
sum in Government’s account and
(iii) upon a true and proper
interpretation of article
187(7)(b)(iii) of the
Constitution, the
Auditor-General is bound to
issue a disallowance and
surcharge where the Government
suffers or incurs a loss or
deficiency through the
negligence or misconduct of any
person” (page 567 of the
report).
(35)
Thus, the decision of this court
in the Occupy Ghana case
ought to be understood within
the context of the issues
settled for determination. The
facts, issues and ratio of the
decision in the Occupy Ghana
case therefore is distinctly
different from those of the
instant reference. Therefore
the ratio which emanated from
the said case must be confined
to the facts evaluated and
issues determined by the court.
We notice that in the
Respondent’s statement of case
in the instant reference,
counsel for the Respondent fully
reproduced relief ‘3’ endorsed
in the Plaintiff’s action in the
Occupy Ghana case but the
said relief not being a subject
of direct pronouncement by the
court and not part of the issues
set down, the contention of
counsel in our view is a
misconception of the ratio in
the Occupy Ghana case.
We are of the view that there is
a clear distinction on the facts
and issues settled therein from
the question for determination
in this reference and therefore
not applicable in the
determination of the question
under reference herein.
(36)
In the Commission On Human
Rights and Administrative
Justice V. Attorney-General &
Baba Kamara case (supra)
this court, speaking through
Date-Bah JSC, identified the
issue for determination in the
said case. It is reported at
page 776 of the report as
follows;
“The fulcrum of this case, from
the point of view of the 2nd
Defendant, on which he has
pivoted his central submission
is article 218(e) of the
Constitution, which provides
that among the functions of the
plaintiff is:
“to investigate all instances of
alleged or suspected corruption
and the misappropriation of
public moneys by officials and
to take appropriate steps,
including reports to the
Attorney-General, resulting from
such investigations.”
His Lordship then proceeded to
hold inter alia that:
“The second Defendant’s argument
seems to us to be intended to
stultify a significant part of
the investigative operations of
the plaintiff. It is intended
to defeat one of the purposes
for which the Constitution made
provision for the establishment
of the plaintiff. From the
language and context of article
218, it is indubitable that one
of its purposes is to enable
the plaintiff’s
effective investigation of
corruption by public
officials. Accordingly, in our
view, a purposive and holistic
interpretation would require
words to be implied into article
218 enabling the plaintiff to
investigate private persons
alongside public officials, even
if private persons are not
expressly specified in any
particular paragraph of the
article, where 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. Such implication
is needed to give efficacy to
the intention and purpose of the
framers”.
(37)
Thus the issue in the Baba
Kamara case is limited to an
entirely different article of
the Constitution for the
determination of the issue
whether or not the Commission
can extend its investigative
powers to the 2nd
Defendant who was not a public
officer within the meaning of
article 218 of the 1992
Constitution at the time the
matters which the Commission
intended to investigate
occurred. The powers of the
Commission as provided under
article 218 and 219 of the
Constitution are purely
investigative whereas the powers
of the Auditor-General under
article 187 are not just
investigative but penal in
nature and limited for the class
of institutions, statutory
bodies and their officers as set
out under article 187(2) of the
Constitution. The issue
provoked in the Commission on
Human Rights and
Administrative Justice 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
the powers conferred on the
Commission on Human Rights and
Administrative Justice and the
Auditor-General under the
Constitution. If juxtaposed
together, there is a sharp
contrast between the two cases
and the instant matter under
reference. The ratios therein
are therefore not applicable in
the determination of the instant
question. We therefore find the
proposition by the Respondent’s
counsel that the said decisions
are relevant and applicable in
the determination of the
question under reference as
untenable.
(38)
CONCLUSION
In conclusion, having found that
the provisions of article 187(7)
b(i)(ii) are not applicable to
the Appellant as conceded by the
Respondent’s counsel, we find
that, contrary to what the
Respondent’s, counsel has urged
on us, the findings and
conclusion of the High Court in
its judgment not having found
the Appellant liable or guilty
of any wrong doing whatsoever,
the provision of sub-clause
b(iii) of article 187(7) cannot
apply to the Appellant having
been insulated therefrom by the
findings of the High Court. 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 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.
I.O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
M. OWUSU (MS)
(JUSTICE OF THE SUPREME COURT)
C. J. HONYENUGA
(JUSTICE OF THE SUPREME COURT)
COUNSEL
O. K. OSAFO-BUABENG FOR THE
APPELLANT/APPELLANT.
RICHARD AGBOTAME FOR THE
RESPONDENT/RESPONDENT |
