Auditor-General has no powers to surcharge Zoomlion - Supreme Court

The Supreme Court has ruled that the Auditor-General has no powers to surcharge waste management company, Zoomlion Ghana Limited.

In a unanimous decision Thursday morning [December 3, 2020], a seven-member panel of the apex court held that the powers of the Auditor-General to surcharge could not be extended to Zoomlion Ghana Limited, which had been slapped with an GH¢184 million surcharge by the Auditor-General, reports Graphic Online's Emmanuel Ebo Hawkson who was in the courtroom.

Surcharge

Hawkson reported that the court, presided over by Justice Jones Dotse ruled that based on the peculiar facts of the case, the Auditor-General's powers to surcharge could not applied to Zoomlion.

The court did not give the reasons for its decision but said it will be filed at the court’s registry by Friday, December 4, 2020.

Constitutional reference

The decision of the court followed a constitutional reference to the Supreme Court by the Court of Appeal where Zoomlion is appealing the surcharge of the Auditor-General which was upheld by the High Court.

Zoomlion had argued that the constitutional power of the Auditor-General to surcharge, applied to only public officials and entities and not private entities like the company.

With the decision of the apex court, it means the Court of Appeal must determine the appeal that the Auditor-General cannot surcharge Zoomlion in line with the Supreme Court’s decision.

A three-member panel of the Court of Appeal referred Article 187 (7) (b) (i) of the 1992 Constitution to the Supreme Court for interpretation.

The said constitutional provision allows the Auditor-General to “disallow any item of expenditure which is contrary to law and surcharge, the amount of any expenditure disallowed upon the person responsible for incurring or authorising the expenditure.

The Supreme Court answered “whether or not in the exercise of his function, under Article 187 (7) (b) (i) of the 1992 Constitution, the Auditor-General can make a surcharge against a person other than a public officer.”

Surcharge

On October 29, 2018, the Auditor-General issued a surcharge and disallowance against Zoomlion for over GH¢184 million for a fumigation exercise it carried out for the Ministry of Health (MOH) but which was paid by the National Health Insurance Authority (NHIA).

That was after an audit conducted by the Auditor-General on the accounts of the NHIA made findings that Zoomlion had between the year 2007 and 2018 allegedly been paid a total amount of GH¢184,901,650.00 devoid of due process.

The Auditor-General’s case was that Zoomlion continued to receive payment for the fumigation exercise up to August 2018 even though the contract between the latter and the Ministry of Health was a four-year contract which started from August 2009.

Zoomlion appealed the decision of the Auditor-General at the Accra High Court on December 5, 2018 and urged the court to set it aside.

On January 31, this year, the High Court, presided over by Justice Georgina Mensah-Datsa, dismissed the appeal.

Dissatisfied, on February 6, this year, Zoomlion appealed the decision of the High Court at the Court of Appeal.

The Court of Appeal realised that there was constitutional interpretation to the case and subsequently referred it to the Supreme Court.

Writer’s email: emma.hawkson@graphic.com.gh 

Read also: Supreme Court to rule on constitutionality of Auditor General’s GH¢184 million surcharge of Zoomlion