Sylvester Mensah
An Accra High Court has set aside audit findings and a notice of certification and specification of disallowance and surcharge brought against a former Chief Executive of the National Health Insurance Authority (NHIA), Sylvester Mensah, and his deputy, Alex Nartey.
The court presided over by Justice Georgina Mensah-Datsa, in her ruling, held that the Auditor General, Daniel Domelevo’s audit and the subsequent notice of surcharge against the two did not follow due process.
According to the court, the Auditor General failed to give the appellants a hearing which is a breach of rules of natural justice under Articles 23 and 296 of the 1992 Constitution, saying “it is, therefore, in the interest of justice that the appeal be granted on this basis.”
The appeal emanated from an audit which claimed that the NHIA under the management of Sylvester Mensah and Alex Nartey made some payments to Zoomlion without following due processes.
Appeal
Not satisfied with the report, Mr. Mensah and his deputy appealed the findings of the Auditor General at the High Court on grounds that they were never informed about the audit and were also not given the opportunity to respond to the findings of the audit.
It was their claim that the only time their attention was drawn to the report and subsequent surcharge and disallowance was when they were informed about it in the media.
The appeal application said they went to the offices of the Auditor General on the 8th January, 2019 to ascertain the legitimacy of the report since the alleged audit process was never brought to their attention neither were they consulted for any clarification nor response to any audit query.
Counsel for the appellants also indicated to the court that at all times during his clients’ tenure at the NHIA, they acted within the confines of Regulation 39 of the Financial Administration Regulation LI 1892.
Counsel argued that whatever payments authorized for which the Auditor-General deemed inappropriate and therefore necessitated the certificate of disallowance was all covered and sanctioned by the law of the NHIA.
Opposition
Counsel for the Audit Service insisted that it would be ‘far-fetched’ for the service to go out looking for individuals who have worked with or were managers in entities or organizations to get them served anytime there was an infraction against such persons, and that the practice was to serve the organization since they have contacts to the concerned persons.
“In instant case, the auditee, that is NHIA, blatantly failed to inform the appellants but rather returned the observation back to the Audit Service.”
Ruling
The judge held that “it is obvious that the appellants herein were not given a hearing by the respondent as demanded by law before the adverse findings were made against them and I find that as a fact.”
This, she said, breaches the rules of natural justice as provided by the Constitution and consequently set aside the finding against them.
BY Gibril Abdul Razak