IN THE SUPERIOR COURT OF JUDICATURE
THE SUPREME COURT
ACCRA – AD 2025
26th FEBRUARY, 2025
CORAM: PWAMANG JSC (PRESIDING), LOVELACE-JOHNSON (MS) JSC PROF. MENSA-BONSU (MRS) JSC ASIEDU JSC, GAEWU JSC
SOFTTRIBE GHANA LIMITED …. APPLICANT / APPELLANT / APPELLANT
VRS
THE AUDITOR-GENERAL …. RESPONDENT / RESPONDENT /RESPONDENT
JUDGMENT
PWAMANG JSC:
BACKGROUND OF THE APPEAL
My Lords, this case arose out of the exercise of the power of disallowance conferred on the respondent/respondent/respondent (the respondent) under article 187(7) of the Constitution, 1992, which provides that on the audit of any public accounts, the Auditor-General (AG) may disallow any item of expenditure which is contrary to law and surcharge the amount disallowed upon the person responsible for incurring the expenditure. It is further provided under Article 187(9) that a person aggrieved by a disallowance or surcharge by the AG may appeal to the High Court. In October, 2019, the applicant/appellant/appellant (the applicant) felt aggrieved by the respondent’s disallowance of its claims for payments for services it rendered to the Office of the Controller and Accountant General (the Controller).
However, the applicant did not seek redress through an appeal as provided for under Article 187(9) of the Constitution. It sought remedy by a motion filed pursuant to Article 33 of the Constitution, which provides for the Protection of Rights by the High Court. The ground for the motion was that the applicant’s rights to Administrative Justice guaranteed by Article 23 of the Constitution were violated by the respondent in the process of exercising its power of disallowance and it wanted the disallowance quashed.
The respondent objected to the procedure adopted by the applicant arguing that, since the Constitution as part of the provisions of Article 187 provided a remedy in the form of appeal, the applicant was not entitled to seek redress by any other procedure. The trial High Court upheld this objection and struck out the applicant’s motion saying its jurisdiction was not properly invoked. On an appeal, the majority of the Court of Appeal agreed with the High Court and dismissed the appeal stating that the applicant adopted a wrong procedure in seeking remedy. The dissenting Court of Appeal Judge however approved of the applicant’s invocation of Article 33 of the Constitution, and further held that the respondent indeed violated the Administrative Justice rights of the applicant and allowed the appeal.
Facts
The facts of this case are not subject to much controversy. The applicant at all times material was a computer software company that was engaged by the Controller in 2008 to provide it maintenance support for government’s Integrated Personnel Payroll Database (IPPD) at an annual fee. This agreement run without any issue for quite some time and in 2012 the Controller entered into a second agreement for the applicant to provide it additional software services at a monthly fee. The second agreement contained a provision for termination of the contract on the giving of six month’s notice.
Sometime in 2016, the Controller complained to the applicant about unsatisfactory discharge of its obligations. He followed this up with a letter dated 11th August, 2016 giving notice of its intention to terminate the agreement and requested it to plan to wind up its operations and to hand over within six months. However, before the six months expired, the Controller wrote on 31st October, 2016 to terminate the contract citing the applicant’s failure despite repeated demands to timely deliver on the payroll of the Ghana Education Service (GES) for the month of October, 2016.
Nevertheless, the Controller in the termination letter committed himself to honour all outstanding payments. The applicant accordingly ended its operations and submitted a claim for outstanding payments in the sum of twenty-two million, two hundred and ninety-five thousand, six hundred and twenty-five Ghana cedis (GHC22,295,625.00). The Controller did not pay this amount but, from the record before us, it appears that he recorded it in his office accounts as part of liabilities of his office for the year ending 2016. This debt reflected in the Public Accounts of the Government of Ghana against the Controller.
As part of its constitutional mandate, the respondent set about auditing the public accounts for the year ending 2016 including the annual accounts of the Controller. Whilst these accounts were being audited by the respondent, the record shows that the
Controller himself was also verifying the applicant’s claims through its internal processes. At the end of the audit exercise by the respondent, he issued a report in which he made findings to the effect that the applicant’s claims were not justified and, in exercise of his power under Article 187(7) of the Constitution, he disallowed the claims.
Strangely, the disallowance of the applicant’s claims was not known to the applicant and the Controller for quite some time after it was made. So, the applicant continued to follow up for payment for his claims from the Controller who also kept assuring it that they were in the process of validating the claims after which they would pay him.
This internal validation by the Controller took a long time until 19th February, 2019 when the Controller wrote to the Minister of Finance and stated that their investigations established that the amount that the applicant was entitled to was thirteen million, one hundred and forty-two thousand, three hundred and seventy-five Ghana cedis (GHC13,142,375.00) and not twenty-two million, two hundred and ninety-five thousand, six hundred and twenty-five Ghana cedis (GHC22,295,625.00).
They accordingly requested for release of funds by the Ministry to pay the amount due the applicant. When the applicant was made aware of this letter, it made a follow up to the Ministry of Finance and it was there that the applicant was informed that his claims had long been disallowed by the respondent in the Auditor-General Audit Report covering the year ending 2016.
The applicant procured a copy of the report and after reading the portion on the disallowance of its claims, it filed an originating motion in the Human Rights Division of the High Court, Accra on 10th October, 2019. The applicant prayed against the respondent for orders of certiorari to quash the disallowance of its claims and for damages. In an affidavit in support of the application, the applicant challenged the reasons assigned in the respondent’s report for disallowing its claims. The applicant argued that;
“(1) having regard to the facts about the transactions, the disallowance was an unreasonable exercise of discretion and could not be legally justified.
(2) the respondent being an administrative official, he was obliged by law, where his decision was likely to affect any person, to give that person notice in the course of conducting his audit and to accord such person a hearing before taking his decision. ”
As has already been stated, the applicant lost in both the High Court and the Court of Appeal and being still dissatisfied, it has appealed to this Court.
The Appeal to The Supreme Court
In its notice of appeal, the applicant has stated only two grounds as follows;
1. The lower court erred in law when it held that by virtue of the Supreme Court decision in Ex parte Arch Adwoa, the only option open to a person affected by the Auditor-General’s disallowance and surcharge is an appeal.
2. The judgment of the lower court is against the weight of evidence.
Ground One of Appeal
On this ground the applicant has argued at great length and has digested the decision in the case of Republic v High Court (Financial Division) Accra, Ex parte Arch Adwoa Company Ltd (The Auditor-General and Anor-Interested Parties) [2019-2020] 1 SCLRG 781 (Adaare). The applicant explained that, in Ex parte Arch Adwoa Co Ltd, the AG disallowed the claims of a civil engineering construction company that undertook contracts for the government but it was not paid. The company was informed of the disallowance and it filed an appeal to the High Court.
The appeal was filed after fourteen days and the High Court struck it out on the ground that, per Rule 2(1) of Order 54A of the High Court (Civil Procedure) Rules (As amended), 2016 (C.I.102), appeals against disallowance and surcharges by the AG must be filed within 14 days. Meanwhile, section 17(3) of the Audit Service Act, 2000 (Act 584) provides that an appeal against disallowance and surcharge shall be filed within sixty days and the company’s appeal was filed within that time. The company applied to the Supreme Court for certiorari against the striking out of its appeal and the issue which the Supreme Court decided was; which provision prevails, as between the time limit for appeals stated in Order 54A or in Act 584? The Supreme Court held that the time limit stated in Act 584 was to prevail and that the trial High Court Judge erred when she held the time limit applicable to be that provided for in Order 54A of the High Court Rules.
The applicant argues that the question for determination in the case at bar is different and it is whether a person aggrieved by a disallowance or surcharge by the Auditor-General has an alternative remedy in Articles 23 and 33 or is limited to an appeal under Article 187(9) only. He says that this issue did not arise and was not considered by the Supreme Court in Ex parte Arch Adwoa Company. The applicant therefore argues that this case is distinguishable from Ex parte Arch Adwoa Company.
The applicant submits, that since the respondent admits that he did not give a hearing to it before disallowing their claims, the respondent breached their rights to Administrative Justice so it is entitled to invoke the human rights protection jurisdiction of the High Court under Article 33 of the Constitution. Article 33 (1) & (2) are as follows;
(1) Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.
(2) The High Court may, under clause (1) of this article, issue such directions or orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition, and quo warranto as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions on the fundamental human rights and freedoms to the protection of which the person concerned is entitled.
The applicant highlights “without prejudice to any other action that is lawfully available…” and submits that it was contemplated by the framers of the Constitution that there may be other existing lawful remedies to redress an alleged breach of human rights, yet they decided to confer jurisdiction under Article 33 as an alternative mode for redress. Reference has also been made by the applicant to the case of Edusei (No 2) v Attorney-General [1998-99] SCGLR 753.
In answer to the arguments of the applicant on this first ground of appeal, the respondent stated that a reading of Article 187 of the Constitution, particularly clause (9) thereof, shows that when it comes to the procedure to be followed to seek redress, any person aggrieved by a disallowance or surcharge must go by an appeal to the High Court. Article 187(7) & (9) are 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 authorising 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….
(9) A person aggrieved by a disallowance or surcharge made by the Auditor-General may appeal to the High Court.
(10) The Rules of Court Committee may, by constitutional instrument, make Rules of court for the purposes of clause (9) of this article.”
The respondent referred to the case of Boyefio v NTHC Properties Ltd [1997-98] 1 GLR 768 and relied on the following dictum of Acquah, JSC (as he then was) at p 782;
“For the law is clear that, where an enactment has prescribed a special procedure by which something is to be done, it is that procedure alone that is to be followed.”
Respondent stated that “The laid down procedure for challenging the disallowance made by the Auditor-General is as spelt out in Order 54 of CI102…”
The respondent submitted that the correct position of the law was confirmed by the Supreme Court in the case of Ex parte Arch Adwoa Company Ltd and quoted the following statement from that decision; “.an appellant who desires to challenge the Auditor-General’s surcharge and disallowance is required under both the constitutional provision in Article 187(9) of the Constitution and Section 17 (3) of Act 584 to do so by an appeal process to the High Court.”
Consideration of Ground One
In our view, the central issue that arises from the first ground of appeal is, whether or not an appeal to the High Court is the exclusive remedy open to a person aggrieved by a disallowance by the Auditor-General or whether, depending on the nature of the grievance, the aggrieved person is at liberty to invoke other jurisdictions of the High Court, particularly Article 33? The respondent relies on Ex parte Arch Adwoa Company Ltd as authority for his argument but, as has been stated by the applicant, that case was not about the various means by which an aggrieved person may seek redress against disallowance or surcharge by the Auditor General. The applicant in that case appealed to the High Court from a decision by the Auditor General to disallow her claims and there was no dispute as to whether appeal was the appropriate remedy or not. It was only a question of what time limit does an aggrieved person have within which to appeal and what the Supreme Court said in passing about appeal was not binding on the lower courts. In the case of Republic v Director of Prisons & Anor; Ex-Parte Shackleford [1981] GLR 554 at 564 Cecilia Korangteng-Addow J. held as follows:
“It is the reason or principle on which a question before a court has been decided
which a binding precedent is. It is in the ratio decidendi of a judgment of a
Superior Court which sets the precedent for itself for inferior courts to follow”
The issue of the exclusivity of special statutory remedies has arisen in our jurisdiction and the common law world with some frequency. The question usually arises where an enactment provides a certain means or procedure or forum for an aggrieved person to seek redress in relation to the exercise of power conferred under the enactment, but a person who claims to be aggrieved ignores the means or procedure or forum stated in the enactment and embarks on proceedings for remedy by a different means, procedure or forum.
The cases on this issue include Boyefio vs NTHC Properties Limited [1996-97] SCGLR 531; Pyx Granite Co. Ltd v Ministry of Housing and Local Government [1960] AC 260; Tularley v Ababio [1962] 1 GLR 411, SC; Republic v High Court, Koforidua; Ex parte Asare (Baba Jamal & Ors-Interested Parties) [2009] SCGLR 460; Edusei v Attorney-General and Anor [1996-97] SCGLR 1; Republic v High Court, Koforidua; Ex parte Otutu Kono III (Akwapim Traditional Council-Interested Party) [2009] SCGLR 1, Republic v High Court, Accra, Ex parte Peter Sangber-Dery (ADB Bank Ltd-Interested Party)[2017-2018] 1 SCGLR (Adaare) 552; Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 CB (NS) 33; Barraclough v Brown [1897] A.C. 615; A v B (Investigatory Powers Tribunal: jurisdiction) (2009) UKSC 12; [2010] 1 All ER 1149; Republic v High Court, Accra; Ex parte: Securities and Exchange Commission. CM. No. J5/35/2020; unreported judgment of the Supreme Court dated 24th June, 2020; and CA: J4/07/2023 Dr Paa Kwesi Nduom & 2 Ors V Bank of Ghana & 2 Ors; unreported judgment of the Supreme Court dated 19th July, 2023.
In all of the above cases, the courts have considered whether, on a true and proper construction of the enactment in question, there is an ouster of all other means, procedures or forums or it is a case of alternative means, procedure or forum for redress that the law maker has provided for in addition to other lawfully available means, procedure or forums. Where the courts came to the interpretation that a complete ouster of all other means, procedure or forums was intended by the maker of the enactment, they have dismissed proceedings by a means, procedure or forum other than that provided for in the enactment.
However, where on the construction of the enactment, the courts concluded that it was a case of alternative or additional means for redress, they have upheld the validity of proceedings embarked upon by alternative procedure or forum. Thus, the rather broad dictum by Acquah, JSC in Boyefio v NTHC (supra) referred to above by the respondent is misleading for even in that case, the conclusion of the Supreme Court was that the statutory forum for resolution of land disputes stated in the Land Title Registration Act, 1986 to be the Land Title Adjudication Committee did not foreclose seeking remedy in the regular courts.
In the matter of forum for the determination of a chieftaincy cause or matter in our country, Articles 273 and 274 of the Constitution provide that it shall be the Judicial Committees of the Houses of Chiefs. This forum has been held by the Supreme Court to be exclusive to the Judicial Committees of the Houses of Chiefs notwithstanding that article 140(1) of the Constitution provides that the High Court shall have jurisdiction in all matters. See Ghana Bar Association v The Attorney-General; unreported Writ No 14/93, Supreme Court judgment dated 7th February, 1995. In that case Amua-Sakyi, JSC stated in his judgment that; “reading the Constitution as a whole, it is apparent that the intention is that the High Court shall not interfere with the original and appellate jurisdiction of the chieftaincy tribunal”. Similarly, in cases involving the enforcement of individual human rights in Ghana, the Supreme Court has held that the High Court is the exclusive forum. See Edusei v Attorney-General and Anor (supra).
On the other hand, in Republic v High Court, Accra, Ex parte Peter Sangber-Dery (ADB Bank Ltd-Interested Party) (supra) the Supreme Court interpreted the provisions in the Labour Act, 2003 which conferred jurisdiction on the Labour Commission to hear complaints of unfair termination of employment as not excluding the jurisdiction of the High Court to entertain suits on unfair termination. Then, in Pyx Granite Co. Ltd v Ministry of Housing and Local Government (supra), the English House of Lords allowed an aggrieved party to seek relief by action in the High Court despite the fact that the Town and Country Planning Act, 1947, had provided under section 17 thereof that an aggrieved person shall seek remedy by applying to the Minister.
The case of Republic v High Court, Accra; Ex parte: Securities and Exchange Commission (supra) concerned Section 141(1) of the Banking and Specialised DepositTaking Institutions Act, 2016 (Act 930) which provides as follows;
“141. (1) Where a person is aggrieved with a decision of the Bank of Ghana in respect of
(a) matters under sections 107 to 122 or sections 123 to 139;
(b) withdrawal of the registration of a financial holding company;
(c) matters which involve the revocation of a licence of a bank or a specialised deposit taking institution; or
(d) an action under sections 102 to 106 and where the Bank of Ghana determines that there is a serious risk to the financial stability or of material loss to that bank or specialised deposit-taking institution or financial holding company and that person desires redress of such grievances, that person shall resort to arbitration under the rules of the Alternative Dispute Resolution Centre established under the Alternative Dispute Resolution Act, 2010 (Act 798).”
First Bank Financial Services, a non-bank financial institution had their licence revoked by the Bank of Ghana under Act 930 but they did not resort to arbitration and rather filed an originating motion and invoked the supervisory jurisdiction of the High Court over administrative bodies, the Bank of Ghana in this case. The Bank of Ghana took objection to the motion arguing that the only means for redress was by arbitration. When the case got to the Supreme Court, their Lordships unanimously upheld the jurisdiction of the High Court and stated as follows;
“Would the decision that the high court is seised with jurisdiction to determine whether FirstBank is entitled to ‘A declaration that the revocation of Applicant’s licence by Respondent is null, void and of no effect for want of compliance with due process and breach of Applicant’s right to administrative justice’ be a mistake in law? We do not think so at all, because the high court is indeed clothed with jurisdiction under Article 140 (2) and 141 in these words: Jurisdiction of the High Court 140 (2) The High Court shall have jurisdiction to enforce the Fundamental Human Rights and Freedoms guaranteed by this Constitution.
Supervisory Jurisdiction of the High Court
141 The High Court shall have supervisory jurisdiction over all lower courts and
any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers.
As part of the above cited jurisdictions, the high court is mandated to review the acts of administrative bodies to determine their conformity with the tenets of administrative justice required under Article 23 of the 1992 Constitution.”
This decision was followed in the case of Dr Paa Kwesi Nduom & 2 Ors V Bank of Ghana & 2 Ors (supra).
Accordingly, this case calls for interpretation of the language of the constitutional provisions in Articles 23, 33 and 187(9) to find out if the framers of the Constitution intended the remedy in article 187(9) to be exclusive of all other remedies. The view of the matter that was taken by the majority in the Court of Appeal was as follows;
“It seems to me that reading the constitutional provision in Article 187(9) of the Constitution1992 and the statutory provisions in section 17(3) of the Audit Service Act 200, Act 584 the lawmakers intended that where any person was aggrieved by a disallowance or a surcharge made by the Auditor General his remedy is to resort to the appeal procedure set out in the statute and the constitution. The appellants have sought to side step the appeal procedure set
out in section 17(3) of Act 583 and have sought to masquerade their cause of action as a human rights action and in so doing avoid recourse to the constitutional and statutory procedure of an appeal.”
Although the Court of Appeal did not say so in express words, the position they took was that, in their opinion, the framers of the Constitution intended by the provision of Article 187(9) to make appeal to the High Court the exclusive remedy for any person aggrieved by a disallowance or surcharge by the Auditor-General. However, Article 187(9) does not say so. The Court of Appeal too did not explain the reasoning that led them to the view that the remedy was intended to be exclusive.
In interpreting the constitutional provisions, we ought to first resort to the plain ordinary meaning of the words of the provisions and apply them as they appear, unless the plain meaning will lead to an absurdity. See the case of Tuffour v Attorney-General [1980] GLR 637. These provisions, which are quite well known, have already been set out above and there is no need to repeat them here. The effect of the provisions is that the Auditor-General being an administrative official is no doubt bound in the discharge of his duties to comply with the provisions of Article 23 which has guaranteed the right to Administrative Justice.
Article 33 provides remedy to any person whose rights to Administrative Justice are violated and the Auditor-General has not been excluded from the operations of Articles 23 and 33. In fact, the framers of the Constitution in Article 33 make it expressly clear that they are mindful of alternative remedies that the law may afford a party complaining about interference with her human rights. Nonetheless, they added recourse to the High Court under Article 33 as an alternative.
The words in Article 33 are; “then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.” If the framers intended to shield the Auditor-General from the High Court’s jurisdiction under Article 33, they would have made Article 33 subject to Article 187(9) of the Constitution as they did with the jurisdiction of the Supreme Court to enforce the Constitution by making it subject to the Human Rights enforcement jurisdiction of the High Court in Article 33. This is how Article 130 (1) of the Constitution has been stated;
“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 original 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.
(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.”
By use of that language, the High Court’s jurisdiction for the enforcement of individual human rights was made exclusive to it, hence the decision of the Supreme Court in Edusei v Attorney-General (supra). On the contrary, there is nothing in the language of Article 187, particularly clause (9), or Articles 23 and 33 of the Constitution that evinces an intention by the framers of the Constitution to make the remedy of an appeal against disallowance or surcharge the exclusive remedy for all types of grievances against the Auditor-General.
A person may feel aggrieved by a disallowance or surcharge by the Auditor-General on a number of different grounds. The ground of complaint may be that the decision of the Auditor-General to disallow an item of expenditure or to surcharge a person with an amount, is wrongful in that the quantum of the disallowance or surcharge is excessive having regard to the facts of the case. Then, another person’s complaint may just be that the Auditor-General did not afford her opportunity to furnish him with information
that would have influenced his decision to disallow or surcharge. In the former situation, there can be no doubt that his proper remedy would be by way of appeal under Article 187(9).
An appeal, jurisprudentially, is a reconsideration of a case by a higher court or body using mainly the evidence that was initially examined by the first decision maker. See A/S Norway Cement Export Ltd v Addison [1974] 2 GLR 177. But, in the later example above, the aggrieved person was prevented from placing her evidence before the Auditor-General so an appeal will not be the appropriate remedy. The later situation falls well within the purview of the proper conduct of an administrative body and therefore Article 23 of the Constitution would apply. That, in our understanding, is the plaint of the applicant in this case and we find no policy reason to prevent the applicant from seeking remedy under Article 33 or even alternatively under the common law jurisdiction of the High Court to supervise administrative bodies.
The nature of the question to be determined when the plaint is about Administrative Justice is different from where the question is whether, on the evidence, the Auditor-General came to the right or wrong conclusion. Both the remedy under Article 187(9) and the one under Article 33 are constitutional remedies and are not mutually exclusive. In Republic v High Court, Cape Coast; Ex parte Ghana Cocoa Board (Apotoi III Interested Party) [2009] SCGLR 603 at 612-613 Dr Date-Bah, JSC observed as follows;
“The right to appeal from the High Court to the Court of Appeal and the right to apply for the exercise of the supervisory jurisdiction of the court are both constitutional rights and I see nothing in the constitutional provisions governing these rights that make them mutually exclusive. In particular, the supervisory jurisdiction is conferred in Article 132 as follows:
The Supreme Court shall have supervisory jurisdiction over all courts and over any adjudicating authority and may, in the exercise of that supervisory jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power.
The exercise of this jurisdiction is not expressly made subject to an applicant not having previously lodged an appeal in respect of the same matter. So long as the separate requirements of an appeal and of an application for the exercise of the supervisory jurisdiction of this court are complied with, a party should be able to avail himself or herself with either avenue of redress at the same time.”
Therefore, our considered opinion is that, the Court of Appeal erred in holding that the only remedy that was available to the applicant in this case was an appeal to the High Court. The applicant’s right to invoke the jurisdiction of the High Court under Article 33 of the Constitution was not taken away by Article 187(9) or any other law so the first ground of appeal succeeds.
Before we sign off from the discussion on the first ground of appeal, we wish to observe that the applicant, in the particulars of error of law under this ground, raised a new matter that was not part of its case in the High Court and Court of Appeal. In subparagraph (f), the applicant stated that the Auditor-General has no authority to exercise his powers of disallowance and surcharge against a private entity, hence the disallowance in this case is void. As authority for this position the applicant relied on the Supreme Court decision in the case of Zoomlion Ghana Ltd v The Auditor-General [2020-2022] 1 GLR 1233.
The respondent in answer to the submissions on this point insisted that the Zoomlion case never decided that disallowance and surcharge by the AG cannot be exercised against private persons. He maintained that the provisions on disallowance and surcharge may be applied against private persons.
Though this point is new, it is a question of law that does not require additional evidence to be determined so we shall deal with it in fra, especially that the respondent has also made submissions addressing it. See, Faroe Atlantic v Attorney-General [20052006] SCGLR 271. For now, let us consider the second main ground on which the applicant proceeded to court, which was that it was entitled to certain Administrative Justice rights in the circumstances of this case and those rights were violated by the
respondent. As to whether the applicant made out a case of entitlement to and breach of its Administrative Justice rights, that enquiry is the subject of the second ground of appeal.
Ground Two
The second ground of appeal is that the ruling of the Court of Appeal is against the weight of the evidence. Nonetheless, the applicant has discussed points of law and referred to several decided cases. The respondent has responded to the points of law under this omnibus ground without any objection, and we too have decided not to join issue with them on the procedure since this court has held that there may be circumstances in a case that would make the court to permit points of law to be argued under the omnibus ground. In the unreported judgment of the Supreme Court in Evelyn Asiedu Offei v Yaw Asamoah, CAJ4/64/2016 dated 25th April, 2018, Appau, JSC speaking on behalf of the court summarized the authorities on the ambit of the omnibus ground of appeal as follows;
“In the recent case of OWUSU-DOMENA v AMOAH [2015-2016] 1 SCGLR 790, this Court explained further its earlier decision in Tuakwa v Bosom (supra) when it held that: – “The sole ground of appeal that the judgment is against the weight of evidence, throws up the case for a fresh consideration of all the facts and law by the appellate court”. Benin, JSC speaking for the Court at page 799 of the report stated as follows: – “We are aware of this court’s decision in Tuakwa v Bosom [2001-2002] SCGLR 61 on what the court is expected to do when the ground of appeal is that the judgment is against the weight of evidence. The decision in Tuakwa v Bosom, has erroneously been cited as laying down the law that, when an appeal is based on the ground that the judgment is against the weight of evidence, then, only matters of fact may be addressed upon. Sometimes, a decision on facts depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law. Thus, when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters”. His Lordship referred to the decision of this Court in ATTORNEY-GENERAL v FAROE ATLANTIC CO. LTD [2005-2006] SCGLR 271 at p. 306 per Wood, JSC (as she then was) for support.”
We shall accordingly consider the arguments of the parties to tackle the foremost issue of substance in the second ground of the appeal which is; in carrying out the audit of the accounts of the Controller, was the respondent obliged to give prior hearing to the
applicant as a person likely to be affected if he decided to disallow its claims? The applicant says that this question must be answered in the affirmative and it relies on Articles 23 and 296 of the Constitution. Article 23 of the Constitution, 1992 provides as follows;
“Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal.”
Article 296(a) & (b) state that;
“Where in this Constitution or in any other law discretionary power is vested in any person or authority –
(a) that discretionary power shall be deemed to imply a duty to be fair and candid;
(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased wither by resentment, prejudice or personal dislike and shall be in accordance with due process of law;
The truth of the matter is that what these enactments say are broad principles that are supposed to guide the work of administrative bodies exercising statutory discretions including the respondent. The key demands made of administrative bodies and officials by the provisions are for them to act “fairly and reasonably”, to be “candid” and not “arbitrary, capricious or biased.” However, on a regular basis, administrative bodies exercise multiple discretions that affect persons and the form in which they are to observe these injunctions is to be determined by all the circumstances and provisions of the enactment under which the discretion is being exercised. The thrust of the applicant’s arguments is that in the circumstances of the exercise of the power of disallowance of accounts by the Auditor-General, they who were to be affected are entitled to have been given a hearing, whether Article 188(7) stated so expressly or not.
The applicant supported its arguments with decided cases, especially; Aboagye v Ghana Commercial Bank [2001-2002] SCGLR 797, Awuni v WAEC [2003-2004] 1 SCGLR 471 and Awuku Sao v Ghana Supply Co. Ltd [2009]. SCGLR 710.
The applicant placed great reliance on Awuni v WAEC (supra), and rightly so, because that was a case of a total failure by an administrative body to accord a hearing to persons who were bound to be directly affected by its decision, which is the issue in this case. The applicant submitted that, on the facts in the Awuni case, the statute in question did not expressly provide that the plaintiffs shall be heard before their
examination results could be cancelled, but the court held that, having regard to the serious effect cancellation of results would have on a candidate, they were entitled to a prior hearing.
The respondent has argued that while the Supreme Court in the Awuni case upheld the right to prior hearing of candidates whose results were to be cancelled by WAEC, the court was careful not to lay down an inflexible rule. Counsel for respondent argued forcefully that the court recognised that prior hearing would depend on the circumstances of each case, and he referred us to what was said at p. 563 of the report by Date-Bah, JSC;
“My interpretation of fairness within the context of Article 23 would be that, in general, unless the circumstances make it inappropriate, for instance for reasons of practicality or of public interest or for other cogently valid reasons, it includes a principle that individuals affected by administrative decisions should be afforded an opportunity to participate in the decision in the sense of being given a chance to make representations on their own behalf of some kind, oral or written, to the decision maker.”
Counsel also referred to the following statement by Sophia Akuffo, JSC (as she then was) at page 514 of the report;
“I will not venture to give a comprehensive definition of what is fair and reasonable since these qualities are dictated by the circumstances in which the administrative function is performed.”
Counsel for the respondent sprung from the above statements by Sophia Akuffo and Date-Bah, JJSC and argued that upholding the right of prior hearing of persons who stood to be affected by the Auditor-General’s exercise of the powers of disallowance and surcharge would be impracticable. He said the target of the audit by the Auditor-General is usually the government agency whose accounts are being questioned and that in the course of the audit the Auditor-General gives hearing to the agency whose accounts are being audited before deciding to disallow or surcharge. He contended that it would be impracticable and inconvenient for the Auditor-General to seek out each person who had dealings with the government agency being audited and to hear from them. Therefore, the circumstances of the work of the Auditor-General are such that the right to prior hearing ought not to be applicable and that an aggrieved person can still be heard after disallowance or surcharge through the avenue of appeal provided for in Article 187(9). Counsel submitted in his statement of case as follows;
“Then the audit process would never come to an end if all private entities that have dealings with government institutions [are] to be heard before the audit is done. That would be unfair to the Auditor-General.”
Consideration of Ground Two
At first read, the arguments of the respondent on this ground of the appeal sound very attractive in that the submissions advocate for reinforcing the Auditor-General’s powers under Article 187(7) to fight graft which is laudable. However, when the fundamental nature of the issue raised in this case; the right to be heard before one’s financial claim is disallowed or before one is surcharged and ordered to pay money to the government, is considered, then the court is compelled to pause for judicial thought. This right is part of the Rules of Natural Justice and is rendered in Latin as audi altarem partem. In Republic v Court of Appeal & Thomford; Ex parte Ghana Chartered Institute of Bankers [2011] 2 SCGLR 941 at pages 952 to 953 Atuguba, JSC said as follows about this rule;
“However, in my view, in Ghana what clinches this issue [the audi altarem partem rule] is Article 296 of the 1992 Constitution. It is as follows:
“296. Exercise of discretionary power
Where in this Constitution or in any other law discretionary power is vested in any person or authority,
(a) that discretionary power shall be deemed to imply a duty to be fair and candid;
(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and
(c) where the person or authority is not a Justice or other judicial officer, there shall be published by constitutional instrument or statutory instrument, Regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power.”
The terms of this provision are mandatory and obviously require observance of the rules of natural justice, especially the audi alteram partem rule involved here. The rule has therefore been elevated to constitutional pedestal and its breach has the constitutional consequences laid down in Articles 1 and 2 of the Constitution, namely such breach voids the act in question.” (Emphasis supplied)
So, that is the stature of the right on which the applicant has planked its case.
But, while it is true that all the cases relied on by the applicant concerned the right to a hearing, they were each decided on their own circumstances and the respondent is right in submitting that none of the cases laid down an inflexible dogma.
In Aboagye v Ghana Commercial Bank (supra), that the applicant referred to, the plaintiff, a senior manager of the Bank, was dismissed by the board of directors for gross misconduct but he claimed that before he could be dismissed from his employment, he was entitled, per the Collective Bargaining Agreement, to be given a formal hearing involving clearly drafted charges served on him. This was despite the fact that he had earlier been taken though disciplinary proceedings after which it was recommended that he should be reduced in his rank.
In the Supreme Court, the Bank argued that it accorded the plaintiff a hearing. However, the court held for the plaintiff on the ground that the Bank had committed itself in the Collective Bargaining Agreement to holding a formal inquiry on the basis of clearly set out charges where it intended to dismiss a senior staff so it would be held to that form of hearing and nothing less. So, in that case the issue was about the form the hearing took and not on a total failure to afford an opportunity to be heard as we have in this case. Secondly, the Aboagye case was not about the conduct of an administrative body or official.
In Awuku Sao v Ghana Supply Co. Ltd (supra), also relied on by the applicant, the plaintiff, a Chief Executive Officer, was dismissed after an audit conducted by the board indicted him of misuse of company funds. The board presented the audit report to him and requested for his comments which he made and after that he was dismissed. In
court he argued that he was entitled to be heard through formal inquiry proceedings before he could be dismissed and he relied on Aboagye v Ghana Commercial Bank. In dismissing the appeal of the plaintiff, the Supreme Court, speaking through Adinyira, JSC held as follows at 725;
“What counsel failed to consider was that in the Aboagye case…the bank was bound by its own disciplinary rules to follow certain procedures including a right of being heard in person, which the bank failed to do. In the instant case, there was no such requirement in the service contract held by the plaintiff. At common law, it is enough if the facts upon which a person is summarily dismissed objectively establishes ground or cause for dismissal.”
Here too the issue was not a failure to give a hearing but it was a question of the form the hearing took and it was also not concerning the conduct of an administrative body as we have in this case.
When it comes to the decision of the Supreme Court in Awuni v WAEC, the facts of which are very close to the instant case, Counsel for the respondent invites us to place the respondent in a special category of administrative officials and to allow him a wider latitude as far as observance of Administrative Justice procedures are concerned. In pressing the argument of inconvenience and impracticability if the respondent is required to give prior hearing before disallowance and surcharge, Counsel has even
misstated the case of the applicant by saying that they are calling for the Auditor-
General to give a hearing to every person who had dealings with the agency whose accounts are being audited.
That is not what we understand the applicant to be saying. It is in respect of those persons whose claims the Auditor-General forms the opinion that they are unlawful or unjustified and ought to be disallowed and those payments already made which he considers are unlawful and unjustified and should be refunded to the state. It is persons who shall be directly affected thereby, such as the applicant here, who, it is submitted, must be given a hearing before the disallowance or surcharge is made. This is what the respondent’s own regulations, (C.I.70) provide;
“43(3) The Board shall cause a system to be established in the Service for the prompt reporting to the Auditor-General of cases which inspection teams consider warranting the Auditor-General’s action to disallow expenditure incurred or to raise a surcharge for irregularities noted under Article 187(7)(b) of the Constitution from audits carried out.”
If this system is established, it should not be difficult for the Auditor-General to give a hearing to the persons concerned before taking the decision to disallow or surcharge. Looked at against this background, the argument of impracticality and inconvenience for the Auditor-General to accord prior hearing before disallowance and surcharge
becomes very weak. Take for instance the case of surcharge, when made against a private person, will it not be the case that the government would seek out the private person surcharged and proceed against him to recover the monies? So, what difference does it make if the person is invited to be heard before the surcharge?
The same argument of inconvenience in according prior hearing to third parties was made by Counsel for the West African Examination Council who argued against the right to prior hearing in Awuni v WAEC. It was dismissed by the Supreme Court and at p. 520 of the report, Sophia Akuffo, JSC said as follows;
“Nor can convenience and expediency serve as guiding principles in the exercise of WAEC’s penal powers if the outcome, in the circumstances smacks of unfairness, unreasonableness and unlawfulness. Therefore, the fact that an investigation which complies with natural justice and meets constitutional standards of fairness and reasonableness might seem inconvenient or impracticable is no excuse.”
The respected jurist continued at p 521 as follows;
“I am very mindful of the critical importance of WAEC’s role in safeguarding the quality and international credibility of its examinations and resultant certificates and diplomas. Most members of this court have undergone, at least, one WAEC
administered examination and are who we are because of its integrity. This role has been, is and will continue to be vital to the socio-economic development of Ghana and other signatories of the Convention. However, the enviable standing of WAEC can be sustained only by ensuring that its administrative processes including the exercise of its powers, remain just. In my view, this can only be achieved through patent constitutionalism and legality, rather than through opacity and arbitrariness.”
The above answer to the argument of inconvenience in observing lawful administrative procedures applies with equal force in this case.
In the English case of Cooper v The Board of Works for the Wandsworth District (1863) 14 CBR (New Series) 180, section 76 of the Metropolis Local Management Act empowered the District Works Board to alter or demolish a house, where the builder has neglected to give notice of his intention to build seven days before proceeding to lay or dig the foundation. The plaintiff built his house without giving any notice to the board. The board went and demolished his house and he sued for damages for trespass and the defence of the board was that they were mandated by the statute to demolish where the person built without the notice. They argued that the statute did not provide that notice should be given to the illegal house owner before demolition.
It was held that the owner of the building was entitled to have been given the
opportunity to make representations to the board before they take the decision to demolish his building. The court reasoned that the power given by the Act to demolish was subject to the qualification that the owner of a house built without notice shall have a right to make representation to the board before they take the decision.
A decision to disallow an item of expenditure and surcharge a person directly affects that person’s property rights and the right to prior hearing in those circumstances ought to prevail over the conveniences of the Auditor-General. Sections 17(5) & (6) of the Audit Service Act provide that;
“5) A sum of money which is lawfully due under this section is recoverable, on civil proceedings taken by the head of department in a Court as a civil debt and where the person surcharged is in receipt of remuneration from the Government or an institution, the remuneration shall be attached to the extent of the sum lawfully due.
(6) In proceedings for the recovery of that sum a certificate signed by the Auditor-General is prima facie evidence of the facts certified.”
By the above statutory provisions, a surcharge has the effect of a judgment of a court of law and can be enforced against the person surcharged without further proof. It is hard for us to accept that it can be lawful for a judgment to be given against any person without the person being given a hearing, but that is the import of the respondent’s suggested interpretation of Article 187(7).
Prior hearing before disallowance and surcharge would, in our opinion, afford the Auditor General the opportunity to narrow down disagreements with potential aggrieved persons as they may offer credible explanations for certain matters that may change his decision and thus reduce the number of appeals to the High Court. Furthermore, we do not consider it to be in the interest of the Auditor General to operate an opaque regime of disallowances and surcharges against private persons. It will create suspicion and mistrust about the actual considerations that go into the Auditor General’s exercise of his power to disallow and surcharge. We think that the adoption of transparent and democratic procedures, though that may be time consuming and involve extra costs, will engender public confidence and trust in the work of the Auditor General and enhance the effectiveness of the office.
Despite the insistence of Counsel that the Auditor-General is not required to hear persons who stand to be affected before disallowance or surcharge, that position appears to be at variance with the statutory scheme set out in Order 54A of the High Court (Civil Procedure) (Amendment) Rules 2016 (C.I.102). These are the Rules that regulate appeals to the High Court against decisions of disallowance and surcharge by the Auditor-General.
Rule 9 provides as follows;
“9. (1) Except as otherwise provided in this Order, the rules on appeals provided in these Rules shall apply to disallowance and surcharge appeals with the modifications that are necessary.
(2) The record of appeal is the relevant documents with the notice and grounds of appeal and the reply submitted by the parties to the Registrar and put together in a folder by the Registrar and submitted to the Court.”
Rule 10 defines relevant documents as;
“Relevant documents” include all documents used by both the person aggrieved which led to the disallowance and surcharge and the documents used by the Auditor-General in the disallowance and surcharge.”.
So, the statutory rules on appeals against disallowance and surcharge anticipate that the person aggrieved would have first presented some documents during the consideration by the Auditor-General to disallow or surcharge. This could only be at a hearing accorded by the Auditor-General to the person to be directly affected before he takes the decision to disallow or surcharge. It is during that prior hearing that the rules
anticipate that the person would have tendered documents which ought to have been taken into account by the Auditor General in arriving at the decision to disallow or surcharge. Thus, the presumption of the maker of these legislative rules is that, the Auditor General would have accorded the aggrieved person a hearing before the decision is taken and against which the appeal is filed.
Consequently, for all the reasons explained above, we are of the firm opinion that the proper interpretation of Article 187(7) of the Constitution is to read into it the right of prior hearing in any person to be directly affected by the exercise of the power of disallowance and surcharge by the Auditor-General.
Are Private Persons Immune from Disallowance and Surcharge?
As we indicated supra, the applicant belatedly contended that the Auditor General’s power of disallowance and surcharge cannot be exercised against private persons but only against public officials. As authority for this position, the applicant quoted some selected portions of what Amadu, JSC, who authored the judgment of the Supreme Court, said in Zoomlion Ghana Ltd v The Auditor-General (supra) at p. 1251 of the report. This is what applicant quoted;
“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 of which was urged on us by counsel for the respondent. The Court of Appeal is directed to determine the appeal accordingly.”
The applicant surprises us with the submission it makes on the basis of the above quotation because, nowhere in what has been quoted did the Supreme Court say that the reason the appellant was not amenable to be surcharged was on account of it being a private legal person. In fact, if the applicant had quoted the whole of the concluding paragraph of the judgment and not only selected portions, the reasoning of the court for holding that the appellant in that case was not amenable to be surcharged would have been made clear. We proceed to quote the full paragraph at pp 1251-1252;
“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 subclause 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.” [Emphasis supplied].
It is plain from the above quoted passage that the reason the Supreme Court stated for saying Zoomlion was not amenable to be surcharged was the fact that the High Court had found on the evidence that Zoomlion was not implicated in any wrongdoing, negligence or misconduct as a result of which the money was wrongfully paid out. As the grounds on which a person who is not the responsible official for the accounts may be surcharged under Article 187(7)(b)(i)-(iii) are wrongdoing, negligence or misconduct, and since Zoomlion was found not to have been guilty of any of those conducts, the court’s view was that, Zoomlion could not be amenable to surcharge. Clearly therefore, it was not because Zoomlion is a private person that it was held not to be amenable to surcharge.
Admittedly, when the full judgment in the Zoomlion case is read, it would be noticed that the appellant therein made arguments to the effect that, under Article 187(7) of the Constitution, a private person could not be surcharged by the Auditor General and that the provision applied only to public officials. The Supreme Court did not determine that issue and it was not part of the grounds on which it decided the case. Although the decision went in favour of Zoomlion, it was not by virtue of it being a private entity.
Now that the issue has emerged again, it is in the public interest that we determine it to put the question to rest. We shall repeat the words of the Article for the convenience of analysis;
“187(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”……
(9) A person aggrieved by a disallowance or surcharge made by the Auditor-General may appeal to the High Court. [Emphasis supplied].
The first rule of interpretation of the Constitution, and indeed all statutes, which we have discussed earlier, is to give the words used their plain and ordinary meaning. In the provisions above, the power given to the Auditor General is to disallow “any” item of expenditure which is contrary to law. Any means any and there is no qualification of the type of items of expenditure that may or may not be disallowed. It is therefore unusual for the applicant to seek to argue that, if the item of expenditure is supplied by a private person, then the Auditor General’s power does not extend to disallowing it. We completely reject this argument as it has no basis whatsoever.
As was succinctly expressed by Kludze JSC in Asare v. Attorney-General [2003-2004] SCGLR 823 at 847:
“expressum facit cessare tacitum. It means “when a thing is expressly stated, it ends speculation as to whether some-thing inconsistent may be implied.” It also means that express enactment shuts the door to further implication and speculation: see Whiteman v Sadler [1910]AC 514 at 517.”
Even if we consider the case of surcharge, the enactment uses the words “the person” and “any person” as those that may be surcharged. If the intention of the framers of the Constitution was to limit the power to operate against only public officials, it would have simply said “the official” or “any official” in the public organisation being audited. It is true that the power of surcharge would be exercised upon the audit of public accounts and that the first line of actors in making expenditure would be public officials.
But it is also true that private persons do business with government through its officials so if we talk of wrongdoing, negligence and misconduct, private persons who do business with government may be the ones who either by themselves or jointly with public officials, engage in the wrongdoing, negligence, or misconduct. A private person who claims for payment by a public entity for goods he did not supply and it is detected after he has been paid cannot say he did not commit wrongdoing or misconduct in relation to that payment. To accept the interpretation suggested by the applicant in this case would be to subvert the plain provisions of the Constitution.
In the case of Commission on Human Rights And Administrative Justice V. Attorney General & Baba Kamara [2011] 2 SCGLR 746, the Supreme Court was urged to interpret Article 218(e) of the Constitution which gave CHRAJ power to investigate “officials” for corruption so as to exclude power to investigate a private person who was alleged to have been implicated in corruption by a public official. The court refused the suggest interpretation and, speaking through Date-Bah JSC, at page 776 of the report stated 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….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”.
In the Baba Kamara case, the word used was “officials” but even then, in order to give efficacy to the constitutional provision for fighting corruption, the court included private persons implicated with an official. In the case of the enactment in question here, the framers of the Constitution used the words; “the person” and “any person” thereby making it abundantly clear that it included both public officials and private persons. We must only give effect to the provision which undoubtedly is intended to cover all persons who may be implicated in wrong doing involving public money.
Accordingly, we hold that the Auditor General’s powers of disallowance and surcharge in Article 187(7) of the Constitution may be exercised in relation to private persons.
RELIEFS
The applicant in the originating motion in the High Court prayed for quashing by orders of certiorari the disallowance of its two claims by the AG. The first amount is five million, forty-seven thousand, one hundred and eight six Ghana cedis, sixty-five pesewas (GHS5,047,186.65) and the second is four million, seven hundred and eighty-five thousand, nine hundred and ninety-eight Ghana cedis, twenty-six pesewas (GHS4,785,998.26). The applicant added the omnibus relief; “And for such further order or orders as to this Honourable Court shall deem fit.” Having held that the applicant was entitled to be heard by the Auditor-General prior to the disallowance of its claims under Article 187(7) of the Constitution, we further hold that the Auditor-General violated the applicant’s right to a hearing and accordingly its right to Administrative Justice guaranteed under Article 23 of the Constitution.
Consequently, the High Court had jurisdiction under Clause 2 of Article 33 of the Constitution to have issued the orders of certiorari that the applicant prayed for but it did not. The Court of Appeal erred by confirming the ruling of the High Court denying itself jurisdiction in this case and we accordingly set aside the decision of the Court of Appeal dated 22nd July, 2022. We grant the prayers of the applicant and hereby make orders of certiorari for the disallowance of the applicant’s claims by the Auditor General contained in his Audit Report of Liabilities of Ministries, Departments and Agencies as at 31st December, 2016 to be brought to this Court for the purpose of being quashed and same are hereby quashed.
We have given deep thought to what consequential orders ought to be made in the interest of doing justice in this case. The minority judge who held for the applicant in the Court of Appeal directed the Auditor General to give the applicant a fair hearing on its claims. Since the claims are about nine years old and the cause of the undue delay was out of the control of the applicant, we are of a different view. We intend to draw on our powers under Article 129(4) of the Constitution and assume the jurisdiction of the High Court and resolve the substantive issues where the facts permit. In the Audit Report exhibited to the affidavit in support of the motion in the High Court, at pp. 68-69 of the Record of Appeal, the reasons why the Auditor General disallowed those claims are stated as follows;
“248. MoF request letter dated 21 January, 2017 asserted that the Government was indebted to Softtribe an amount of GHS9,833,179.26 as at 31st December, 2016 for various services as shown in the table below;…
249. To confirm the validity of this claim, we requested for the underlying records supporting the claim and observed that Softtribe, contract for IPPD annual maintenance elapsed at the end of 2014 and hence the claim of GHS5,047,186.65 was invalid. Again, the amount of GHS4,785,998.26 in favour of Softtribe in respect of 10 months of IPPD 3 software support with a monthly cost of GHS682,052.25 had also been paid in October, 2016 before the abrogation of the contract for non-performance and negligence of duty. We therefore reject this claim on the basis that Government had already paid Softtribe an amount of GHS7,564,519 for the ten months work done.”
The reason for the disallowance of the claim five million, forty-seven thousand, one hundred and eighty-six Ghana cedis, sixty-five pesewas (GHS5,047,186.65) is a question of law which properly is for the court to answer. It has to do with the rights of parties to a contract for a specified period who continue to perform their obligations despite the
fact that the contract has lapsed. In such situations, unless there is a term in the expired contract to the contrary, the law would imply that there is a new contract entered into by the parties on the same terms as the expired contract and the parties will be bound by the terms as if they had signed the new contract. See Andar Transport Pty Ltd v Brambles Ltd [2002] VSCA 150, Modahl v British Athletics Federation Ltd [2001] EWCA Civ 1447 and Brogden v Metropolitan Rly (1877) 2 App Cas 666.
From the record before us, the Comptroller who benefited from the services of the applicant admitted owing the applicant. This means that the applicant did provide those services to the Comptroller after the expiry of the agreement. Therefore, the law would imply an extension of the agreement so the Auditor General was not justified in disallowing that claim. In the circumstances, in order to ensure justice to the applicant, we hereby make a consequential order for the Ministry of Finance to release funds to the Controller for the applicant to be paid in the sum of five million, forty-seven thousand, one hundred and eighty-six Ghana cedis, sixty-five pesewas (GHS5,047,186.65) with interest at the prevailing bank rate to be calculated from 21st January, 2017 to the date of payment. That is the date the Auditor General’s report states as the date the request was made to the Ministry of Finance to release funds for paying the applicant.
The reason for disallowing the second claim is a matter of evidence and we cannot decide on that claim since the record does not contain all the relevant evidence on
which the respondent stated that the applicant had already been paid. This is notwithstanding that the Comptroller appeared to admit that claim too. The applicant is at liberty to pursue that claim and for the Auditor-General to prove that the applicant had already been paid.
We wish to say for the avoidance of doubt that this decision only upholds the right to prior hearing for a person who would be directly affected where the AG intends to disallow an item of expenditure or surcharge. However, as to the form the hearing should take, that is constitutionally in the domain of the Auditor-General to work out. Furthermore, in giving this judgment, we are not unmindful of its general effect and the fact of previous disallowances and surcharges by the Auditor General which may have been done without prior hearings. We see a number of disallowances and surcharges in the Audit Report involved in this case. We are however comfortable to give this judgment because, the maximum limitation period for bringing human rights actions in the High Court is stated in Rule 3 Order 67 of CI 47 to be six months which has long lapsed in relation to the Audit Report in question. Even if a person affected were to seek judicial review, that too by the provisions of Rule 3 Order 55 of CI 47 has a limitation period of six months. See also the Supreme Court case of Shitu Wabi & 76 Ors v Attorney-General; CA. J4/22/2022, unreported judgment dated 30th November, 2022. Therefore, essentially, this decision offers relief only to future subjects of disallowance and surcharge.
We expect the Auditor General to amend the Audit Service Regulations, 2011 (C.I.70) and include regulations for the exercise of the power of disallowance and surcharge and make provision for discussing audit observations with any person to be directly affected by the exercise of that power. Currently, Regulation 34(2) of C.I.70 mandates audit teams to fully discuss audit observations with audited organisations and this ought to be extended to persons to be directly affected by disallowance and surcharge, whether they are public officials or private persons.
(SGD.) G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
(SGD.) A. LOVELACE – JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
(SGD.) S. K. A. ASIEDU
(JUSTICE OF THE SUPREME COURT)
(SGD.) E. Y. GAEWU
(JUSTICE OF THE SUPREME COURT)
CONCURRING OPINION
PROF. MENSA-BONSU (MRS) JSC:
“New occasions teach new duties;
Time makes ancient good uncouth,
They must upward still and onward,
Who would keep abreast of truth”.
James Russell Lowell
I have had the opportunity to read the Lead judgment of my esteemed brother Pwamang JSC President of the panel, and fully concur in the result. This concurring opinion is, nevertheless proffered to underscore the need for the Auditor-General to adopt modes of procedure that respect the rights of persons and entities which enter into contracts with the Government of Ghana, whilst fully respecting the need for probity and accountability in the interests of the State.
This is an appeal pursuant to a notice of appeal filed on 19th August, 2022, from judgment of Court of Appeal dated 28th July 2022.
FACTS
The appellant (also referred to on occasion as ‘applicant’) and the Controller and Accountant General’s Department (hereinafter referred to as ‘Department’) executed a consulting and maintenance agreement on 28th July, 2008, by which the appellant was to develop an integrated Personnel and Payroll Database (IPPD -3). There was also executed a maintenance agreement, per whose terms the appellant was obliged to renew the Department’s software license yearly at an annual fee of One Million, Two Hundred and Seventy-six Thousand, Five Hundred United States Dollars (US D$1,276,500) or its cedi equivalent.
Subsequent to the execution of the maintenance agreement, the applicant and Department again executed another service agreement known as the Software Support and Service Level Agreement on 20th February, 2013. By this Service Agreement, the appellant was to provide back-up service and support for the Department in consideration of the monthly sum of One Hundred and Seventy-Two Thousand, Five Hundred United States Dollars ($172,500.00) to be paid by the Department to the appellant.
It is the appellant’s case that it performed its obligations under both agreements conscientiously, without reneging on any of its obligations. To the surprise of the appellant, the Department served notice on 11th August, 2016, terminating its engagement with the appellant. However, the effect of the notice of termination was that the agreement was to subsist for a further period of six months, after which the agreement would be effectively terminated.
Upon the termination of the agreement, the appellant duly presented its invoices for the payment of Twenty-two Million, Two Hundred and Ninety-five Thousand, Six Hundred and Twenty-five Ghana Cedis (GH 22,295,625.00) covering the services to the Department under the two agreements for the period of December 2015 to February 2017. The Department, which by letter (Exhibit D), had undertaken to pay all sums due and owing, subsequent to the termination of the agreements, failed to do so. Instead, it continued to engage with appellant until sometime in February 2019, when the Department communicated to the appellant the reason for its failure to make payment based on a letter dated 19th February 2019 (Exhibit E) to Ministry of Finance. In that letter the Department informed the Ministry of Finance that the appellant was only entitled to Thirteen Million One Hundred and Forty-Two Thousand, Three Hundred and Seventy-Five Ghana Cedis only (Ghtf13,142,375.00) and not the sum of Ghtf22,295,625 that the appellant had demanded. The reason was that the outstanding amount of Nine Million, One Hundred and Fifty-Three Thousand, Two Hundred and
Fifty Ghana Cedis (Ghtf9,153,250.00) represented payment for services after the agreement had been terminated. The Department therefore accepted only the sum of Gh^13,142,375 as its indebtedness to appellant.
Despite this admission of indebtedness, attempts to get the Ministry of Finance to pay the appellant were unsuccessful. However, sometime in August 2019, the Budget Officer of Ministry of Finance, in a chance encounter, informed the appellant that its refusal to pay the acknowledged debt of Thirteen Million (Gh^13,142,375), was on account of the respondent’s disallowance of the payment in its Audit Report of 2016, entitled “Report of the Auditor-General on the liabilities of Ministries, Departments and Agencies as at the 31st day of December 2016”.
The supposed disallowance was made, without granting an opportunity to be heard prior to the disallowance being made. Neither did the respondent notify the appellant of the auditing process which directly affected the appellant’s right to the said funds, and which process led to the disallowance of the payment of monies due and payable to the applicant for work done by the appellant.
Subsequent to the disallowance there was no publication, neither was there a notification to the applicant of the disallowance made against the applicant until a chance encounter with an official of the Ministry of Finance, revealed the cause of the refusal to pay the admitted debt. This meant, therefore, that an adverse finding had
been made against the appellant in a process of which he had no notice, and which deprived it of monies to which it believed itself entitled, without being given an opportunity to be heard, or even being notified of the result.
The appellant, therefore, applied to the High Court, Human rights Division alleging a denial of its right to procedural justice and a violation of its right to fair hearing. It deposed to an affidavit that the respondent as an administrative body was mandated to adhere to rules of administrative justice and procedural justice in making decisions which affected the rights of persons such as the applicant. Further, that in other situations of disallowance, the affected persons were notified, but not so, with the appellant. Consequently, the applicant’s right to procedural due process was violated. The High Court upheld the respondent’s contention that the statutory procedure open to a person under Article 187(7) and the Audit Service Act was an appeal and not an originating process.
The appellant filed a Notice of Appeal on 7th August, 2020 against the judgment of the High Court. and by 2:1 majority, the Court of Appeal dismissed the appeal on 28th July, 2022. The respondent had submitted that article 187(9) and (10) of the 1992 Constitution, as well as The Audit Service Act, 2000 (Act 584) and CI 102, mandated a person who was aggrieved by a decision of Surcharge or Disallowance made by the Auditor-General to appeal to the High Court, and that pursuant to article 187(10) of the 1992 Constitution, the Rules of Court Committee had made comprehensive rules to guide the procedure to be adopted under Order 54 A of the High Court (Civil Procedure) (Amendment) (No.2) Rules 2016 (C.1.102) as follows:
Appeals rules 1, 2, 5 and 7: –
“1. Where the Auditor – General makes a disallowance and surcharge under Clause (7) of Article 187 of the Constitution, a person aggrieved by the surcharge may appeal to the High Court in accordance with the Rules contained in this Order.
2. Notice of Grounds of Appeal
2(1) The appeal shall be commenced by filing with the Registrar within 14 days of the surcharge by the Auditor- General of five copies of the notice and grounds of appeal together with five copies of all the documents relevant to the appeal, in the possession of the person aggrieved.
(2) Where a person is not able to file the notice and the grounds within the time prescribed in sub-rule (1) the person may apply for extension of time to do so within fourteen days from the date of expiry fixed in sub-rule (1).
5) The grounds of appeal shall set out concisely and under distinct heads the grounds on which the person aggrieved relies without an argument or narrative and shall be numbered consecutively.
7. For the purposes of the appeal, the Auditor – General is the Respondent.”
The respondent submitted further that Section 17(3) of Act 584 provides that;
“17(3) A person aggrieved by the disallowance or surcharge made by the Auditor-General may appeal to the High Court not later than the expiration of sixty days prescribed subsection (2)”
Relying on the dictum of Acquah JSC (as he then was) in Boyefio v NTHC [1997-98] 1 GLR 768 at 782 that, where an enactment sets out a procedure for invoking the jurisdiction of the Court, the party must comply with it or he will be thrown out. The respondent contended that the appellant had used the wrong procedure and that the judgment of the High Court ought to be upheld.
Relying on the provisions as well as authorities cited, and by a majority of 2:1, the Court of Appeal upheld the submission of the respondent. The majority decision maintained that the procedure for challenging Surcharge and Disallowance under article 187(9) and
section 17(3) of the Audit Service Act 2000 (Act 584) was by way of an appeal to the
High Court. Therefore, the appellant should have appealed to the High Court, but not to invoke the original jurisdiction of the High Court. The minority decision disagreed holding that there was a violation of appellant’s right to administrative justice under articles 23 and 296. Further that the failure to accord the applicant a hearing amounted to a breach of the natural justice right to a fair hearing; and that payment disallowed constituted appellant’s property of which he had been deprived, without due process. Thus, despite the statutory prescription of an appeal as the mode for challenging determinations of surcharge and disallowance by the Auditor-General, there could not be only one allowable mode in light of breaches of articles 23 and 296. Therefore, certiorari would lie.
By notice of appeal dated 9th August, 2022, the appellant launched the instant appeal to this honourable Court.
GROUNDS OF APPEAL
The following grounds of appeal were filed:
“i. The court below erred in law when it held that by reason of the decision of the Supreme Court in the case of Republic v High Court (Financial Division), Accra, Ex-parte Arch Adwoa Co. Ltd (The Auditor-General and Another Interested
Party [2019-2020] 1 SCLRG 781, the only option open to a person affected by the Auditor-General’s disallowance and surcharge is an appeal.
Particulars Of Error
a. The decision of the Supreme Court in Ex-parte Arch Adwoa Co. Ltd (The Auditor-General and Another Interested Party is only properly applicable where the aggravated [sic] person has been accorded the right to administrative justice in the cause of Auditor-General’s Audit.
b. The decision in the Ex parte Adwoa case does not preclude an applicant from invoking the High Court Human Rights jurisdiction for the enforcement of Applicant’s fundamental human rights to administrative justice.
c. Applicant’s action before the Court was for the protection of Applicant’s right under Article 23 of the 1992 Constitution.
d. The decision of the Supreme Court in Ex parte Adwoa did not oust the High Court’s jurisdiction to enforce fundamental human rights and administrative justice against Respondent.
e. There is no rule of law which fixes one course of action on a party where other courses, statutory and constitutional, are available to the party.
f. The Auditor-General has no authority to exercise is [sic] powers of disallowance and surcharge against Applicant, a private entity in the face of the very recent decision of the Supreme Court in the Zoomlion Ghana Ltd v The Auditor-General Reference No. J6/01/2021 judgment dated the 3rd day of December 2020 case which holds that the only auditees of the Auditor-General are public officials
ii. The judgment is against the weight of the evidence.”
Relief Sought
“The appellant seeks an order reversing the decision of the Court of Appeal and granting Applicant/Appellant relief prayed for at the High Court.”
Case for the appellant
The facts on which the appellant relies are essentially the same as what it relied on in the trial court and in the Court of Appeal. The appellant indicates a preference herein to be referred to simply as ‘applicant’. However, the respondent’s consistent use of ‘appellant’, makes it imperative for us to use ‘appellant’, and only use ‘applicant’ interchangeably, as dictated by the circumstances.
The appellant maintains in paragraph 5 of its Statement of Case filed on 20th June 2023 as follows;
“…Respondent Auditor-General’s constitutional mandate to disallow or surcharge is restricted solely to public person and not private persons, for which reason the Auditor-general acted unlawfully by the purported disallowance of funds due and owing to the applicant for the execution of its contractual obligations to the controller and Accountant-General’s department and the State” He relies on Zoomlion Gh. Ltd v The Auditor-General J6/01/2021/ judgment dated 3rd December 2020.”
The appellant further submits in its para 10 as follows:
“Furthermore, we contend that the constitution mandate conferred on the High Court by Article 33(1) of the Constitution, “cannot be limited, amended or
repealed by a statute or a rule of procedure, as same … can only be amended by
the procedure stated in the Constitution. Nor can a statute or procedure diminish the High Court’s jurisdiction conferred on it by the Constitution”.
He relies on Republic v. High Court Accra (Industrial and Labour Division Court 2) ex parte Peter Sanger-Dery (ADB Bank Ltd Interested Party [2017-2019] 1 SCLRG 552 “The provision is peculiar and special in the sense that only a provision of the Constitution may limit the jurisdiction of the High Court and not by an Act of Parliament. The legislature may enhance but not diminish the High Court’s jurisdiction by an Act of Parliament.”
The appellant urges on this honourable court to distinguish the Ex parte Adwoa case from the instant case, when it contends in its paragraph 28 that:
“To the extent that the applicant herein alleged that the respondent Auditor-General violated Applicant’s right to Administrative justice protected under Article 23 of the Constitution the proper forum for remedying this violation is at the High Court and by invoking the human right enforcement jurisdiction of the High Court which applicant rightly did.”
He goes further to cite see Awuni v. West African Examinations Council [2003-2004] 1 SCGLR 471 on the standard of applicable principles of administrative practice under article 23 of the Constitution. In the Awuni v. West African Examinations Council case, supra, where Kpegah JSC at p.489, stated that:
“The phrase to act fairly and reasonably” in my opinion necessarily imports a duty to observe the common law maxim of audi alteram partem and other principles of natural justice which is very much a part of our jurisprudence and are implicit in the constitutional provisions in article 23 because I cannot contemplate how a person could be said to have acted fairly and reasonably if he did not give either notice or hearing to another who was entitled to such notice or hearing before taking a decision which adversely affects his rights, neither can I contemplate a situation where a person could be said to have acted as a judge in his own cause, or gave a biased or perverse decision”.
See also: Aboagye v Ghana Commercial Bank [2001-2002] SCGLR 797 in which Bamford-Addo JSC at p. 806 stated that,
“Administrative bodies and officials shall act fairly. And acting fairly implies the application of the rules of natural justice which have been elevated to constitutional rights and are binding on all adjudication and administrative bodies as well as courts and tribunals.”
The appellant believes the Constitution does not create a bar to taking action under article 33(1), even if other modes of redress have been provided, citing Abena Pokuaa Ackah v Agricultural Development Bank [2017-2018] 2 SCLRG 1.
The appellant therefore seeks an order reversing the decision of the Court of Appeal.
The respondent (herein referred to simply as ‘respondent’) filed Statement of case on 19th February 2024.
Case of the Respondent
On 22nd November 2019, the respondent filed an affidavit in opposition in answer to the appellant’s application to the High Court. The respondent contended that the applicant erred in invoking the Human Rights jurisdiction of the High Court when, under the Audit Service Act 2000 (Act 584) and the High Court (Civil Procedure) Amendment Rules (No. 2) (C.I. 102), a challenge to disallowance and surcharge must be an appeal. Therefore, that the Audit Service Act 2000 ousted the exclusive jurisdiction of the Human Rights Court – a right conferred by the Constitution. Again, that the High Court (Civil Procedure) Amendment Rules (No. 2) (C.I 102) also ousted the exclusive jurisdiction of the High Court on Human Rights.
The respondent also admitted that in the exercise of its administrative function of auditing which could have adverse effects on the rights of persons, it does not grant such persons an opportunity to be heard, and that it only grants notices to such persons after the decision to disallow or surcharge has been made.
The respondent further contended that the applicant should be deemed to have had constructive notice of the disallowance having chanced upon same, in the year 2019 (approximately three years after the said disallowance was made against the applicant); and that the High Court ought not to quash the decision by certiorari.
The High Court in its decision dated 3rd June, 2020, relied on the decision in the case of Republic v. High Court, (Financial Division) Accra Ex parte Adwoa Company Ltd ( The Auditor-General and Another Interested Party) Civil Motion No J5/32/2019 Decided on 10th April 2019]; Unreported, [ now reported in 2019-2020 SCGLR] to hold that the only means of challenging disallowance was by way of an appeal and not by invoking the exclusive Human Rights jurisdiction under article 33(1) of the Constitution. Therefore, that the applicant ought to have invoked the jurisdiction of the High Court by way of an appeal, “against the disallowance made by the Auditor – General by filing a notice of appeal with the Auditor – General as Respondent and not by bringing an originating motion for enforcement of fundamental human rights.” under article 33(1) and Order 67 of High Court Rules, CI47.
The respondent further submits in paragraphs 16 of the Statement of Case that
“16 [t]he Respondent therefore contended that the Appellant failed or refused to abide by the said Provisions of the laws by appealing against the disallowance as prescribed by law, and rather chose to hide behind human rights to have its issues addressed, when indeed the crux of the matter was a challenge against the disallowance made by the Auditor-General.”
On the issue of the respondent’s failure to grant a hearing before making the disallowance, respondent argued in paragraph 17 that,
“The Auditor-General does not grant a hearing before making disallowances and surcharges per its mandate. It only serves notice of same to persons affected and from the Applicant’s submissions it is noted that the Applicant had constructive notice of the disallowance…”
Thus, he maintained, the applicant’s relief lies in an appeal against the Auditor-General and not by way of Human Rights application.
The respondent goes further and asserts in paragraph 18 of its statement of case that the Auditor-General served notice on the Controller and Accountant General’s Department whose account was being audited, so it had acted within its mandate.
The respondent further argues in paragraph 53 that the demand to grant a hearing before a decision of disallowance and surcharge is made is impracticable because:
“It is trite knowledge that the government and its agencies have a lot of dealings with private entities. It will be impossible and almost a herculean task for one to argue as the appellant in this case, that the Auditor-General ought to conduct a hearing of private persons when it is auditing government accounts and the government institutions. It is in this regards that the constitution as well as the audit Act make room for persons affected by the disallowance of the Auditor-General to seek redress and do so by following the elaborate and well-spelt out procedures laid down in CI102. Order 54 A of the High Court (Civil Procedure) (Amendment) (no.2) Rules 2016 (C.I. 102) has outlined a comprehensive procedure to be followed in cases of Disallowance and surcharge.”
Appeals rules 1, 2, 5 and 7 provide as follows: –
‘1. Where the Auditor – General makes a disallowance and surcharge under Clause (7) of Article 187 of the Constitution, a person aggrieved by the surcharge may appeal to the High Court in accordance with the Rules contained in this Order.
2. Notice of Grounds of Appeal 2(1) The appeal shall be commenced by filing with the Registrar within 14th days of the surcharge by the Auditor- General of five copies of the notice and grounds of appeal together with five copies of all the documents relevant to the appeal, in the possession of the person aggrieved.
(2) Where a person is not able to file the notice and the grounds within the time prescribed in sub-rule (1) the person may apply for extension of time to do so within fourteen days from the date of expiry fixed in sub-rule (1).
5) The grounds of appeal shall set out concisely and under distinct heads the grounds on which the person aggrieved relies without an argument or narrative and shall be numbered consecutively.
7. For the purposes of the appeal, the Auditor – General is the Respondent.”
The respondent submitted further that Section 17(3) of Act 584 of 2000 provides that
“17(3) A person aggrieved by the disallowance or surcharge made by the Auditor-General may appeal to the High Court not later than the expiration of sixty days prescribed subsection (2)”
In paragraph 54 of the statement of case, the respondent submits that
“The constitution has set the tone when it comes to the procedure to be followed when an applicant is dissatisfied with the disallowance and surcharge of the Auditor-General. When the constitution has set down the appropriate procedure to be … is only right and proper that whoever is aggrieved in this case the Appellant follows the laid down procedure for invoking the jurisdiction of the Court, the party must comply with it or he will be thrown out.”
Then the respondent relies on the dictum of Acquah JSC (as he then was) in Boyefio v NTHC [1997-98] 1 GLR 768 at 782, that
“For the law is clear that, where an enactment has prescribed a special procedure by which something is to be done, it is that procedure alone that is to be followed.”
Therefore, he asserts that it is the law that if a mode for invoking the jurisdiction of the Court has been set down by statute, then a party must comply with it, or bear the consequences of such non-compliance.
The respondent further relies on the Ex parte Adwoa Ltd case and contends that the appellant’s reliance on Zoom Lion Ghana Ltd v. Auditor General Suit No J6/01/2021 judgment dated 3rd December 2020; (Unreported), is misplaced. In Zoom Lion Ghana Ltd v. Auditor General, supra, the dictum of Amadu JSC was to the effect that;
“The response to the question referred to this court by the Court of Appeal is that, in the context of the facts of the case, the Appellant is not amenable to the power of the Respondent under article 187(7)(b)(ii). Neither will it be under subclause 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.”
Therefore, the context made a difference.
The Respondents continues further in paragraph 62 that,
“Gleaning from Amadu JSC’s statement supra, the court stated that the Appellant was not amenable to the respondent’s powers under article 187(7)(b) of the Constitution because the respondent failed to discharge the onus of proof on it. Consequently, the blanket statement that private persons are not amenable to the powers of the Auditor General supra as is being asserted by the appellant, is of no moment and same should not be countenanced.”
This submission is then concluded in paragraph 65 on the note that a purposive approach to constitutional interpretation is preferred as there is a mischief to be cured,” and cites the dictum of Date-Bah JSC in the Commission on Human Rights and Administrative Justice v Attorney-General & Baba Kamara [2011] 2 SCGLR 746 thus;
“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 paragraph of the article, where such investigation of a private person is necessary in order to expose the total picture of 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.”
Indeed, if there is a mischief to be cured, then the cure should not be worse than the disease, for of what use is medication that can cure a disease only after killing the patient?
The appellant has two main grounds of appeal:
1. The court below erred in law when it held that by reason of the decision of the Supreme Court in the case of Republic v High Court (Financial Division), Accra, Ex-parte Arch Adwoa Co. Ltd (The Auditor-General and Another Interested Party [2019-2020] 1 SCLRG 781, the only option open to a person affected by the Auditor-General’s disallowance and surcharge is an appeal.
The particulars of error, however, set out a number of contentious issues that are argued throughout the submissions and therefore require specific attention.
“Particulars Of Error
a. The decision of the Supreme Court in Ex-parte Arch Adwoa Co. Ltd (The Auditor-General and Another Interested Party is only properly applicable where the aggravated [sic] person has been accorded the right to administrative justice in the cause of Auditor-General’s Audit.
b. The decision in the Ex parte Adwoa case does not preclude an applicant from invoking the High Court Human Rights jurisdiction for the enforcement of Applicant’s fundamental human rights to administrative justice.
c. Applicant’s action before the Court was for the protection of Applicant’s right under Article 23 of the 1992 Constitution.
d. The decision of the Supreme Court in Ex parte Adwoa did not oust the High Court’s jurisdiction to enforce fundamental human rights and administrative justice against Respondent.
e. There is no rule of law which fixes one course of action on a party where other courses, statutory and constitutional, are available to the party.
f. The Auditor-General has no authority to exercise is [sic] powers of disallowance and surcharge against Applicant, a private entity in the face of the very recent decision of the Supreme Court in the Zoomlion Ghana Ltd v The Auditor-General Reference No. J6/01/2021 judgment dated the 3rd day of December 2020 [2019-2020] 2 SCLRG 440] case which holds that the only auditees of the Auditor-General are public officials.
ii. The judgment is against the weight of the evidence.”
The issues captured under this ground will be dealt with seriatim. The submissions on the differences between the position of the parties turn on the meaning of a few judgments of the Supreme Court.
The appellant raises the issue of whether a private person’s accounts come under the purview of the Auditor-General as set down in ground (f) of the particulars of error first. Therefore, it would be appropriate to deal with that contention first.
Whether a private person’s accounts are amenable to the powers of the Auditor General?
The appellant relies on the dictum of Amadu JSC in Zoomlion v The Auditor-General, supra. In that case, the respondent (also the same respondent herein) in exercise of his powers under Article 187(7) of disallowance and surcharge made a demand on the appellant therein to refund One Hundred and Eighty-four Million, Nine Hundred and One Thousand, Six Hundred and Fifty Ghana Cedis (Ghtf184,901,650) to be paid into the consolidated fund. This was the sum of money the respondent found to have been lost to the state by payments made to the appellant by officials of National Health Insurance Authority.
The appellant, aggrieved by the demand, appealed the decision pursuant to article 187(9) of the Constitution. The High Court dismissed the appeal and affirmed the disallowance and surcharge. The appellant therefore took a further appeal to the Court of Appeal, seeking to set aside an order from the High Court to set aside the findings of the respondent which led to the decision to disallow and surcharge the amount on the appellant. In the course of hearing the appeal the Court of Appeal referred the question of whether the Auditor-General could make a surcharge against the appellant, a private person who was not a public officer, to the Supreme Court to enable it make a determination of the matter.
The Supreme Court, per Tanko Amadu JSC stated at p.454 thus:
“It is apparent from this finding by the High Court, which has not been appealed against by the respondent, that the appellant was exonerated by a court of competent jurisdiction on the issue of fraud. The trial court also found that the appellant was not guilty of any wrong in the nature of negligence or misconduct in the course of the transaction for which the payments were made by the NHIA. Consequently, the applicant is not amenable to the constitutional power under article 187(7)(b)(iii). We, accordingly hold that article 187(7)(b)(iii) of the constitution is not applicable to the appellant.” (Emphasis supplied.)
Tanko Amadu JSC took the opportunity to explain the decision of the Supreme Court in the Occupy Ghana case in a manner that makes it apposite in this case. At p. 456 he continued thus:
“The decision of this court in the Occupy Ghana case must be understood within the context of the issues which were settled for determination in that matter. The
facts, issues and ratio of the decision in the Occupy Ghana case are different from those of the instant reference. Therefore, the ratio of that case must be confined to the facts and issues determined by the court.”
He then concluded the issues on the firm note at pp.458-9 that:
“[W]e hold, contrary to what the respondent’s counsel has urged on the court, that article 187(7)(b)(iii) does not apply to the appellant, since in its findings and conclusion, the High Court found that the appellant was not liable or guilty of any wrongdoing whatsoever. The response to the question referred to this court by the Court of Appeal is that, in the context of the facts of the case, the appellant is not amenable to the power of the respondent under article 187(7)(b)(i). The appellant is also not amenable to the power of the respondent under sub-clause (b)(ii) (iii).” (Emphasis supplied).
How could an answer so carefully and narrowly crafted by Tanko Amadu JSC to meet the demands of a specific context, be so unduly stretched beyond the point which it may reasonably be said to cover? The Supreme Court was clear that not being “amenable to the powers of the Auditor-General”, was consequent upon certain conditions, such as:
“That the appellant was exonerated by a court of competent jurisdiction on the
issue of fraud. … that the appellant was not guilty of any wrong in the nature of negligence or misconduct in the course of the transaction for which the payments were made by the NHIA.”
From this statement it is clear that the Supreme Court never intended that no private person or entity, whatever their conduct in the course of business, could be beyond the pale of an Auditor-General’s investigative powers. That surely would create an absurdity in the audit function. Indeed, Professor Raymond Atuguba seems to share this view when, in ‘The new Constitutional and Administrative Law of Ghana: From the Garden of Eden to 2022′ (University of Ghana by permission of Wolters Kluwer, 2022 p. 486) he expresses the view that “the ratio of this case is of little utility as a generally binding decision, and may therefore not be setting an absolute principle that private persons are completely immune from the powers of the Auditor-General.” I am in entire agreement that Tanko Amadu JSC’s insistence on the particularity of the circumstances of a case affecting the applicability of this case must be properly appreciated by all who would view it as a blanket principle.
Further, one might ask, on whom was the right of appeal conferred under article 187(9)? Indeed, section 17(1) of Act 584 provides as follows:
“The Auditor-General shall specify to the appropriate head of department or institution the amount due from a person on whom a surcharge or disallowance has been made and the reasons for the surcharge or disallowance.” (Emphasis supplied).
One might ask, if this provision were construed to mean that private persons and entities were excluded, who would “a person on whom a surcharge or disallowance has been made” refer to? Would it be referrable to the same head of department, or a subordinate officer of that same department? Therefore, clearly, this is a reference to third parties, i.e., private persons or entities, with whom the Department may have had dealings that brought on the expenditure. Thus, barring the absence of criminal or other unlawful or untoward conduct on the part of the private person or entity, the statement a private person was not amenable to the exercise of disallowance and surcharge by the Auditor-General, is not a true reflection of the intendment of the law.
In the instant case, the respondent challenges the statement that private entities are not amenable to the Audit powers of the Auditor-General, and insists that it ought to be able to investigate private persons. However, in the same breath, the respondent complains that a requirement to grant private persons a hearing would mean that the audit would never be completed. How then does respondent mean to “investigate” a private person or entity, if that does not entail giving the person or entity a chance to be heard in its own defence? The requirement of proof of wrongdoing before a private person or entity becomes amenable to the power of the respondent to impose disallowance and surcharge necessarily means granting the subject of the investigation a right to be heard in its own defence.
The next four issues (a-d) being closely interlinked with the meaning and purport of the case of Republic v High Court; Ex-parte Arch Adwoa Co. Ltd (The Auditor-General and Another Interested Party, supra, will be discussed as one.
a. “The decision of the Supreme Court in Ex-parte Arch Adwoa Co. Ltd (The Auditor-General and Another Interested Party is only properly applicable where the aggravated [sic] person has been accorded the right to administrative justice in the cause of Auditor-General’s Audit.
b. The decision in the Ex parte Adwoa case does not preclude an applicant from invoking the High Court Human Rights jurisdiction for the enforcement of Applicant’s fundamental human rights to administrative justice.
c. Applicant’s action before the Court was for the protection of Applicant’s right under Article 23 of the 1992 Constitution.
d. The decision of the Supreme Court in Ex parte Adwoa did not oust the High Court’s jurisdiction to enforce fundamental human rights and administrative justice against Respondent.”
Since all the listed issues turn on Republic v High Court (Financial Division), Accra, Ex-parte Arch Adwoa Co. Ltd (The Auditor-General and Another Interested Party (supra), it would be important to set it out in some detail to enable a proper appreciation of the facts and issues involved.
On 23rd January, 2018, the Auditor-General of Ghana, issued a report on the audit of Government Ministries, Departments and Agencies (MDA) of the Republic of Ghana, as at 31st December 2016. In the report the Auditor-General made a disallowance of the sum of Four Million, One Hundred and Fifty-Three Thousand, Five Hundred and Six Ghana Cedis Thirty-three Ghana Pesewas (GH^4,153,506.33), which was being claimed by the applicant from the State for work done. The disallowance was on the ground that the claim was illegitimate as the amount had already been paid. The Applicant filed a notice of appeal against that decision on 19th March 2018 in accordance with Article 187(9) of the 1992 Constitution and Section 17(3) of the Audit Service Act 2000 (Act 584).
At the hearing of the appeal Counsel raised a preliminary objection on the grounds that the appeal had been filed out of time because the Applicant had fourteen days within which to appeal the decision whose publication date was 30th January, 2018, and a further fourteen days to apply for extension of time and since he did not apply for extension of time, the notice of appeal was a nullity. Counsel for the interested party subsequently withdrew the objection and informed the Court that it might grant the applicant extension of time to appeal. Nevertheless, on 24th May 2018, the Court struck out the appeal on the ground that it was a nullity.
The Applicant then applied to the same High Court for an order to set aside its ruling dated 24th May, 2018, on the grounds that the order was a nullity, but the Court dismissed that application. On 24th September, 2018, the Applicant filed a Writ of Summons in the High Court seeking reliefs in respect of the disallowance and surcharge by the 1st interested party, and subsequently filed application for interrogatories.
On 23rd January, 2019, the Court, by its ruling, dismissed the application for interrogatories on the grounds that the application was premature; and that the High Court did not have original jurisdiction to entertain the suit. The applicant subsequently filed the instant application in the Supreme Court, seeking orders of Certiorari and Prohibition to quash the ruling/orders of the High Court and to prohibit the trial judge from continuing to exercise jurisdiction in the matter. The grounds were: that the High Court made a jurisdictional error apparent on the face of the record when she declined jurisdiction to hear and determine the suit intituled Messrs. Arch Adwoa Co. Ltd v Auditor General & Attorney General Suit No. FT0044/2018 on account of the fact that the action, being one of a disallowance and surcharge by the Auditor-General, the only avenue open to the applicant to challenge the findings is an appeal, and not an action begun by Writ of Summons. Further, that by virtue of the inconsistent/contradictory rulings made by the High Court Judge against the Applicant, there was a real likelihood
of bias if she continued to hear the case. The Supreme Court held, inter alia, that the applicant did comply with both article 187(9) and Section 17(3) of Act 584 in respect of filing of the original notice of appeal, which was struck out by the High Court. In the words of Dotse JSC at p.803, the Court stated;
“From the facts and law what is evident and clearly unmistakable is that, an appellant who desires to challenge the Auditor-General’s disallowance and surcharge is required under both the constitutional provision in article 187(9) of the Constitution and Section 17(3) of Act 584 to do so by an appeal process to the High Court. Again, under section 17(3) of the Audit Service Act, 2000 (Acts 584) the appellant must do so within sixty days.” (Emphasis supplied.)
It is thus from this statement in Ex parte Arch Adwoa that the respondent maintains that the only avenue available to a person who has been made subject to a disallowance and surcharge is an appeal to the High court and that the High Court did not have original jurisdiction to hear any such matter. This posture, consequently, led the respondent to submit in paragraph 75 of his statement of case that, “what remained after the audit was for the applicant who is a private person, being aggrieved by the findings of the Auditor-General to appeal against the findings of the Auditor General in the manner proscribed[sic] by law”
The respondent appears to miss the point that in Ex parte Arch Adwoa, it was the
taking out of a Writ of Summons to address a grievance arising out of the imposition of an amount of money by way of disallowance and surcharge that was held to be the wrong mode of procedure since the law had prescribed the appellate process to redress same. In the instant case, however, the attack mounted by appellant was against the very validity of the of the process adopted to reach a decision of disallowance and surcharge, and not against the result of the exercise of such powers, as in the quantum of money determined to be in issue as happened in Ex parte Arch Adwoa.
The appellant’s plaint, therefore, was that the Auditor-General did not afford it, a hearing before making the disallowance against it, and that this violated his right to administrative3 justice. The respondent’s answer was to shrug it off and to assert in paragraph 78.
“It is alien to the practical workings of the Auditor-General in the performance of its mandate. The Account being audited was not the Account of the appellant. The appellant is not a public account… Thus, it would be impracticable to invite private persons to be part of the auditing process. The circumstances make it inappropriate and impracticable. Then the audit process would never come to an end if all private entities that have dealings with government institutions to be heard before the audit is done. That would be unfair to the Auditor-General” (emphasis supplied).
This is a very strange argument indeed. In Occupy Ghana v Attorney-General [20172018 2 SCGLR 527 in which the Supreme Court upheld the principle that it was a mandatory obligation of the Auditor-General to impose disallowances and surcharges in appropriate cases the terms are explained. At p.554, Dotse JSC explains that;
“The Chambers 21st Century Dictionary, Revised Edition defines the word “disallow’ at p 379 as follows ‘verb – to formally refuse to allow or accept something (2) to judge something to be invalid – disallowance – noun’. The same dictionary at page 142 defines the word ‘surcharge’ as follows: (i) an extra charge, often as a penalty for late payment of a bill’ When we consider the meanings ascribed to these words in the context in which they have been used in article 187(7)(b) of the Constitution… And having refused to accept or allow the expenditure as being contrary to law, the Auditor-General now proceeds to impose an extra charge as penalty for the retrieval of the amount or expenditure which he has refused to allow or accept because it was contrary to law.”
The Auditor-General, by this submission, is seeking to put his convenience above right to fairness of the auditees, and fails to appreciate that after the Occupy Ghana decision compelling him to make disallowance and surcharges, it also required of him new administrative arrangements and directions in order to implement his newly-explained existing mandate. In not doing this, the respondent appeared to be wedded to doing
things the same old way and hence the complaint about auditing process becoming administratively cumbersome and difficult to operate. The good Book counsels against putting “new wine into old bottles” if one is not to come to grief in the process of storing new wine. In HWR Wade & C E Forsyth ‘Administrative Law’ (11th Edition) (Oxford University Press, 2014) the learned authors of the old classic textbook on Administrative Law state at pp.373-374 thus:
“Procedure is not a matter of secondary importance. As governmental powers continually grow more drastic, it is only by procedural fairness that they are rendered less tolerable….”
It is true that the rules of natural justice restrict the freedom of administrative action and that their observance costs a certain amount of time and money. But time and money are likely to be well spent if they reduce friction in the machinery of government; and it is because they are essentially rules for upholding fairness and so reducing grievances that the rules of natural justice can be said to promote efficiency rather than impede it. .Justice and efficiency go hand in hand, so long at least as the law does not impose excessive refinements.”
It is clear from the learned authors’ opinion that procedural rules have intrinsic value and adherence may save time and money. Had the respondent complied with the principles of natural justice this case that has run for the better part of a decade, may
not have even begun. The respondent owes it to itself and to the public that it must devise new arrangements for carrying out its mandate that do not involve violations of the rights of third parties who deal with government MDAs. The point is made in Republic v Bank of Ghana Ex-Parte: Hoda Holdings Limited Civil Appeal No. J4/62/2023; Judgment Delivered On 26th June, 2024 (Unreported). This was an appeal against the decision of the Court of Appeal reversing a decision of the High Court which had exercised its power of judicial review of administrative action. In that case, the facts were that the Bank Of Ghana in pursuance of its regulatory powers over financial institutions, issued a notice on 16th August, 2019, declaring Unicredit, a specialized deposit taking institution, insolvent and revoked its licence as a specialized deposit taking institution. The Bank of Ghana had so acted after a period of exchange of correspondence on the issue of the solvency of the Deposit-taking institution. The issue, inter alia was whether it should have given the shareholders and Directors a hearing before issuing the Notice of insolvency and revoking its operating license. Consequently, whether the failure to do so was a breach of the audi alteram partem rule. The Supreme Court per Sackey Torkornoo CJ: at paragraph 57 of the judgment stated that,
“The firm position of the law is that to pass the audi alteram partem rule of natural justice in the conduct of administrative or official work, a hearing is accomplished in substance, and not form. In dealing with the principles of natural justice, it must be appreciated that they operate substantively, rather than
as procedural safe guards. As long as a party has reasonable notice of the case he has to meet and is given the opportunity to give explanations or answer any arguments set out against the party, the threshold for compliance with the audi alteram partem ruling has been attained, unless a statute or regulation prescribes a specific format for conducting a hearing. See also Republic v Ghana Railway Corporation [1981] GLR 752 cited with approval in Lagudah v Ghana Commercial Bank [2005-2006] SCGLR 388.”
From this dictum, it is clear that the new rules need not be suffocating, but they must incorporate a standard of fairness into the mode of working of the respondent.
In respect of appropriate procedure to third parties to vindicate their rights, the respondent in its paragraph 84, submits thus:
“it is the case of the respondent that the appellant has failed on, or refused to follow these laid down procedures thus resulting in the High Court and the Court of Appeal’s decision to refuse the application for enforcement of human rights. The appellant has sought to sidestep the appeal procedure prescribed by section 17(3) of Act 584 and has masqueraded its cause of action as a human rights action. In essence, the human rights action is calculated to evade the constitutional and statutory procedure of an appeal,” (emphasis supplied).
From this submission, it is clear that the respondent does not seem to appreciate that a violation of procedural fairness is an attack on the validity of the decision and cannot be derisively referred to as a “masquerade” of the real action. Such procedural challenges, when successful, result in the decision being declared a nullity and therefore cannot be served by rules of appeals. In Awuni v West African Examinations Council [2003-2004 1 SCGLR 471 the essence of the observance of fundamental human rights in such administrative settings was discussed. Akuffo JSC (as she then was) at p.514, stated the law thus:
“Where a body or officer has an administrative function to perform, the activity must be conducted with, and reflect the qualities of fairness, reasonableness and legal compliance. …At the very least however, it includes probity, transparency, objectivity, opportunity to be heard, legal competence and absence of bias, caprice or ill-will. In particular, where, as in this case, the likely outcome of an administrative activity is of a penal nature, no matter how strong the suspicion of the commission of the offence, it is imperative that all affected persons be given reasonable notice of allegations against them and reasonable opportunity to be heard.”
On his part Kpegah JSC stated at p.498 that,
“[I]it is a well-settled principle of administrative law that preliminary investigations … is not subject to the principles of procedural fairness. But when the council, after its own preliminary investigations, forms the opinion that there might have been collusion as a result of foreknowledge among students then, I think, the principles of procedural fairness, like giving notice and hearing to the appellants must be observed.”
Again, in the recent case of Republic v. High Court, (General Jurisdiction 13), Accra; Ex Parte The National Democratic Congress and 6 Others; (The Electoral Commission of Ghana and 7 Others – Interested Parties). Civil Motion No: J5/17/2025; Ruling delivered on 27th December, 2024; (Unreported); Pwamang JSC had this to say about the right to be heard: “Our courts and courts globally, especially throughout the common law world, have consistently held the audi alteram partem rule to be a fundamental and sacrosanct rule.” These dicta show clearly that decisions made, and which affect the rights of persons who come within the purview of the powers of the respondent must be founded on the observance of the audi alteram partem rule or they cannot stand. Such persons or entities must be given a hearing after preliminary investigations have provided a basis for further action, before any conclusions as to criminal or other misconduct can be drawn, or penalties of disallowance and surcharge be imposed.
How can an appeal be mounted against a decision that is deemed to be a nullity in the first place? Thus, matters relating to procedural fairness cannot be adequately or properly dealt with as an appeal, as its very essence as a valid decision is disputed.
The respondent further argues that he is not obliged to inform third parties of his decision to impose disallowance and surcharge since by the provisions of section 17(1) of Act 584.
“The Auditor-General shall specify to the appropriate head of department or institution the amount due from a person on whom a surcharge or disallowance has been made and the reasons for the surcharge or disallowance.”
Consequently, in Paragraph 86 he submits that;
“The position of the law is clear and unambiguous, that the notice is only to be directed at the appropriate head of department or institution of the state institution against which the disallowance and surcharge has been made, in this instance, the Controller and Accountant-General’s Department.”
He further, he submits in paragraph 87 that “The Controller and Accountant-General Department whose accounts were being audited was notified accordingly.”
It seems somewhat bewildering that any public official tasked with exercising such powers may ignore the rights of third parties to be heard and impose sanctions upon them of a financial nature.
The respondent also points out that if the appellant was claiming that some notices were issued to others even though the authenticity of the document (Exhibit G), was doubtful, it “comprises only persons who have been surcharged and could not be located. What then does it mean for those who were on the list, even if they were located? How about those who were not on the list, (as the appellant claims to be), but who could have been located, but were not? How was anyone to ascertain that their rights had been accorded due regard? Indeed, how could anyone claim such entities with whom, presumably contracts of various durations had been entered into, could not be located? Clearly the respondent’s processes fell short of reasonable and fair procedures for serving notice of disallowances and surcharges.
Finally, the respondent concludes in paragraph 88 that;
“To all intents and purposes, the Auditor-General followed its legal mandate to the latter. It is the Appellant who has persistently failed to follow laid down procedures by law, in addressing its grievance(s) against the Auditor-General.”
The trajectory of the arguments mounted by the respondent could create serious
difficulties for the State, as well as for third parties who enter into contracts with MDAs.
The State relies on many private entities to secure goods and services it requires to keep the machinery of government running. Various departments, usually through the head, must enter into contracts to secure appropriate contractors to supply the needed commodities. When a situation is created where the respondent can capriciously refuse payment for goods and services already enjoyed by the State, then the powers of the respondent could be weaponized to enable the state evade contractual obligations by simply making assumptions of wrongdoing by third parties and imposing disallowances and surcharges. This posture is sure to create a credibility gap that can cost the State dearly if not addressed by proper procedures.
When a head of Department who may have done a wrongful or negligent act is served notice how does that information get transmitted to the third party who is to pay the amount or on whom the financial responsibility of a disallowance falls? Surely this creates a conflict of interest in such a head, who may have authorized expenditure for services rendered and which was subsequently disallowed, to be the one to bring the disallowance to the attention of the third party. If it is his own wrongdoing or negligence that created the loss, then making good the loss by payment imposed would be that of the head of department. However, where third parties are involved, such imposition would have to be transmitted to the third party who at all material times had a valid contract with the MDA. Why would the head of department who would personally have to make good a loss occasioned by his own wrongdoing or negligence,
be the one expected by the respondent to bring the information to the attention of the third party whose payments had been compromised by the disallowance, or who would be required to pay a sum of money by way of a surcharge? Clearly, in such a situation, the temptation to sit tight and do nothing about the situation till the difficult moments pass, as happened in the instant case, is overwhelming, and ought not to be tolerated by the law.
The named head of Department in the instant situation, stood to benefit by not informing the third party of the surcharge and disallowance. It is in light of this potentially conflictual situation in section 17(2), that section 17(3) then gives the “person aggrieved” a right of appeal within sixty days. Therefore, if no hearing notice is to be implied into these proceedings, how would a third party know that it has a cause that renders him “a person aggrieved” by a decision to disallow an expenditure or surcharge with a financial penalty? As happened in the instant case, it took three whole years before a chance encounter brought the disallowance and surcharge to the attention of the appellant, whose bills, in a highly-inflationary economy, had remained unpaid. The argument that having to grant a hearing to such third parties would be unfair to the Auditor -General is thus untenable. Ensuring fairness to a public official in the performance of his official duties ought not to entail perpetrating unfairness to a third party who is pursuing lawful business interests.
In any case, who, in this situation is the “a person aggrieved by a disallowance or
surcharge? Is it head of the department whose accounts are being audited or the person
who stood to suffer financial repercussions? If it is the former, then the Auditor-General’s work is done when the head of Department has been served a notice. However, if it is the latter, then merely serving notice on the head is inadequate and unfair.
The minority judgment also notes that the respondent sending out notices of disallowance and surcharge to some affected persons and leaving out others rendered the exercise unfair and discriminatory when there was a constitutional duty to exercise any discretionary power in a fair and candid manner. Article 296 of the Constitution, 1992, provides that the “exercise of discretionary power shall be in accordance with due process of law.” What then does “due process of law” mean in this context, when a financial liability is to be placed on a party who has no means of knowing of such liability? How is this right to due process to be vindicated if there is no obligation to serve notice on the person in whom inheres the right of appeal? Clearly, if an avenue for redress has been provided to the “person aggrieved”, then all such persons as the appellant, deserved to be notified. This was more so, as a person such as the appellant, had no means of knowing that an occasion which required him to resort to the prescribed avenue to vindicate his rights had arisen. It is, thus, plain to see that the Auditor-General was obliged, under constitutional principles of fairness and reasonableness and a duty to be candid, to serve direct notice on the appellant to enable any constitutional or statutory or rights, to be appropriately vindicated.
In Certiorari an appropriate remedy?
The respondent submits that the applicant’s complaint was about the surcharge and disallowance and did not seem to appreciate the procedural lapse in neither granting a hearing nor serving notice of disallowance and surcharge. As pointed out in the minority opinion,
“Decisions of the Auditor-General on disallowances and surcharges amount to exercise of quasi-judicial function. Respondent in that role acts the same way as an inferior court or tribunal. It is trite learning in administrative law that decisions of all quasi-judicial administrative bodies are subject to judicial review under exceptional circumstances. Respondent cannot be an exception in a democratic dispensation anchored on the rule of law … Therefore, whereas the position holds true that the remedy for disallowance and surcharge by Respondent is an appeal that law applies only where the complaint is on the merits of the decision. Where a party alleges breaches of natural justice such as the hallowed audi alteram partem rule (administrative justice) a constitutional enforcement under article 33(1) of the Constitution or judicial review under Order 55 CI47 will be the appropriate remedy.”
Article 23 provides that;
“Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal.”
The issue of the requirement to “act fairly and reasonably and comply with the requirements imposed on them by law” was explained by Kpegah JSC in Awuni v West African Examinations Council (supra), at p.489 as follows:
“The phrase “to act fairly and reasonably” in my opinion necessarily imports a duty to observe the common law maxim of audi alteram partem and other principles of natural justice which is very much part of our jurisprudence and are implicit in the constitutional provisions in article 23. Because I cannot contemplate how a person could be said to have acted fairly and reasonably if he did not give either notice or hearing to another who was entitled to such notice or hearing before taking a decision which adversely affects his rights, neither can I contemplate a situation where a person could be said to have acted fairly and reasonably if he acted as a judge in his own cause, or gave a biased and perverse decision!”
See also TDC & Musa v Atta Baffour [2005-2006] SCGLR 121 where Georgina Wood JSC
(as she then was) held at p.129, cited Lord Greene in Associated Provincial Picture houses Ltd v Wednesbury Corporation [1948] 1 KB 223 which principles were expatiated on by Lord Diplock in Council of Civil Service Unions v Minister for Civil Service [1984] 3 All ER 935 at 949, otherwise referred to as
‘Wednesbury principles’ as follows:
“To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision maker, although it may affect him too. It must affect such other person either (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdraw. …
For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely, as in arbitration, by agreement between the parties) to make decisions that, if validly made, will led to administrative action or abstention from action by an authority endowed by law with executive powers, which have one or other of the consequences mentioned in the preceding paragraph.”
It was also held, per Date-Bah JSC at p 153 that;
“Article 23 of the 1992 Constitution which is contained in the chapter on fundamental human rights, contains within it a similar concept and therefore reasonableness in administrative decisions is a matter of fundamental human rights in this jurisdiction.”
Other grounds listed by Lord Diplock in Council of Civil Service Unions v Minister for
Civil Service, supra, include:
illegality, – decision maker must comply with the law that regulates his decision-making power
irrationality – decision outrageous in its defiance of logic procedural impropriety failure to observe natural justice.
The appellant herein falls squarely within the procedural impropriety wing.
In respect of the resort to article 33(1) to seek relief, Kpegah JSC went on further to state that;
“My Lords, it is clear to me that the appellants anchored their plaint on article 23 of the Constitution of this country and, in seeking redress, took advantage of article 33(1) which confers jurisdiction on the High Court to adjudicate any lis in which an individual either alleges an actual infringement of his fundamental rights or brings a quia timet action to prevent a threatened breach of his rights. Article 33(1) states in unambiguous language as follows:
“33(1) Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being is likely to be contravened in relation to him, then without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.”
The minority judgment also notes that the disallowance and surcharge, being one involving financial liability, failure to observe natural justice amounts to depriving a person of personal property without due process of law. The appellant was condemned to suffer a financial deprivation running into millions of cedis because of the arbitrary and capricious exercise of discretionary power. How could such a right be vindicated by a process of appeal? Therefore, the breach of natural justice undermined the very validity of the decision and what was in issue was procedural rights and not the substantive merits of the case as reflected in the quantum of money involved.
The decision in Ex parte Arch Adwoa did not, and could not, oust the jurisdiction of the High Court to enforce human rights. Certiorari is certainly the appropriate remedy, notwithstanding the appeal process specified in article 187(7).
ii. The judgment is against the weight of the evidence.”
The Supreme Court has held in a number of authorities that in a case in which no evidence is taken, and the entire case is fought on affidavit evidence this omnibus ground is not an appropriate ground of appeal. It is clear that the same considerations hold for an appeal against the exercise of supervisory jurisdiction. In The Republic v Bank Of Ghana Ex-Parte: Hoda Holdings Limited supra per Sackey Torkornoo CJ stated at paragraph 41;
“As appreciated from the line of cases commencing from Attorney General v Faroe Atlantic Co Ltd [2005-2006] SCGLR 271 and Owusu Domena v Amoah [2015-2016] 1 SCGLR 790, a ground of appeal that urges that a judgment is against the weight of evidence also places an obligation on the appellate court to determine the legal import of the evidence placed before the court, and not just the probative value of the evidence.”
She then goes on in paragraph 45 to state that;
“The court’s remit on an application for judicial review cannot extend into the legal merits of the impugned decision, when the facts surrounding the decision are weighed. This is precisely because in an application before a court, the court has no tools to weigh the preponderance of factuality and veracity of the exhibits tendered. It is in the appreciation of the limitation of the remit of a court conducting judicial review of an administrative decision that the Court of appeal misdirected itself.”
Consequently, the action in the Human Rights court challenged the very validity of the procedure for making disallowances and surcharges, and that jurisdiction could not be ousted by any other law.
Conclusion
The trajectory of events establishes that, as stoutly asserted by the minority judgment of the Court of Appeal, the appellant was not given a hearing as mandated by article 23. The right to resort to the Human Rights High Court could not be ousted by legislation which provided an avenue for challenging issues pertaining to disallowance and surcharge. The appeal must be allowed.
(SGD.)PROF. H. J. A. N. MENSA-BONSU (MRS.)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
THADDEUS SORY ESQ WITH NANA BOAKYE MENSAH BONSU ESQ. FOR THE APPLICANT / APPELLANT / APPELLANT
JONATHAN ACQUAH (PRINCIPAL STATE ATTORNEY) WITH GIFTY KYEI (SENIOR STATE ATTORNEY) AND GRACE LARYEA (ASSISTANT STATE ATTORNEY) FOR THE RESPONDENT/RESPONDENT/RESPONDENT
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