Daniel Yao Domelevo
The Supreme Court yesterday dismissed the decision of the Auditor General (AG), Daniel Yao Domelevo, to surcharge waste management company, Zoomlion Ghana Limited.
A seven-member panel of the court presided over by Justice Jones Dotse in a unanimous decision held that the AG did not have the powers to surcharge the private company.
The decision of the court followed a case referenced to the highest court by the Court of Appeal in an appeal filed by Zoomlion against an Accra high court’s judgment that had largely affirmed the AG’s surcharge against the company.
The Supreme Court was to interpret Article 187 (7) (b) (i) of the 1992 Constitution which allowed the AG to “disallow any item of expenditure which is contrary to law and surcharge, the amount of any expenditure disallowed upon the person responsible for incurring or authorizing the expenditure.”
Disallowance
The AG in October 2020, disallowed and surcharged Zoomlion Ghana Limited over GH¢184 million regarding work it did for the National Health Insurance Authority (NHIA) through the Ministry of Finance.
After auditing the accounts of the NHIA for the period 2007-2018, the AG issued a disallowance and a surcharge against Zoomlion in the sum of GH¢184,901,650.
According to Mr. Domelevo, Zoomlion was paid the amount between 2007 and 2018 without due process.
Not satisfied, Zoomlion went to the high court to appeal against the decision of the AG, claiming it had been denied the right to be heard before being surcharged.
The company attached numerous documents it claimed showed the existing contracts for the jobs done.
According to them, “Zoomlion intentionally added copies of activity reports and documents belonging to other contracts between the Ministry of Local Government and Rural Development and 10 allied companies of Zoomlion, including Meridian Waste Management Services, ABL Environmental Engineering Ltd and Volta Waste Management Ltd, among others.
The High Court presided over by Justice Mensah-Datsa in her judgment, although held that the AG failed to establish fraud against Zoomlion Ghana limited, it went ahead to dismiss the appeal by the company against the disallowance and surcharge.
Court of Appeal
Not satisfied with the decision of the High Court, lawyers for Zoomlion filed an appeal against the ruling of the court at the Court of Appeal.
During the hearing of the case, the Court of Appeal came to the realization that there was the need for interpretation of the constitution, hence referred it to the Supreme Court.
The apex court was to interpret Article 187 (7) (b) (i) of the 1992 Constitution.
Supreme Court Ruling
A seven-member panel of the Supreme Court presided over by Justice Dotse in a short ruling held that the AG did not have the powers to surcharge the company as the company was not liable to his powers due to the peculiar facts of the case.
The court said the full reasoning for its decision would be made available on December 4, 2020.
BY Gibril Abdul Razak