Court clears Osafo-Maafo, Kroll, 5 others in $1m surcharge by Domelevo

The Accra High Court has struck out a $1 million surcharge issued by the Auditor-General, Mr Daniel Yaw Domelevo, against the Senior Minister, Mr Yaw Osafo-Maafo, and five others.

The five others are Michael Ayensu, Abraham Kofi Tawiah, Patrick Nomo and Eva Asselba Mends, all officials of the Ministry of Finance, and a UK firm, Kroll and Associates.

The court, presided over by Justice Afia Serwah Asare-Botwe, set aside the surcharge after it upheld two separate appeals filed by the Senior Minister, together with the four officials of the Ministry of Finance, and Kroll and Associates.

Justice Asare-Botwe held that the Auditor-General failed to exercise his discretionary power to issue the surcharge in a “fair” and “candid” manner and without arbitrariness, as enshrined under Article 296 of the 1992 Constitution.

“I hold that the respondent (Auditor-General) failed to abide by the well-known rules of natural justice of giving the appellants the opportunity to be heard,” she said.

Surcharge

In 2017, the Senior Minister, on behalf of the government, signed a contract with Kroll and Associates for the firm to do value-for-money auditing on some projects, identify wrongdoers and recover the assets of the said wrongdoers.

Kroll was reportedly paid $1 million.

However, following an audit of the accounts of the Ministry of Finance, the Auditor-General came to a conclusion that Kroll and Associates had been paid for no work done.

Acting under the powers granted him under Article 187 (7) (b) of the 1992 Constitution, Mr Domelevo surcharged the Senior Minister, the four officials of the Ministry of Finance and Kroll and Associates GH¢5,510,353.73.

Appeal

Pursuant to Article 187 (9) of the 1992 Constitution, Mr Osafo-Maafo and the four officials of the Ministry of Finance challenged the surcharge and filed an appeal at the Accra High Court on October 22, 2019.

Counsel for the five appellants, Mr Yaw Oppong, argued that the Auditor-General failed to observe due process, and that he also failed to act within the remit of the law before issuing the surcharge.

It was the case of counsel that the Auditor-General acted “unreasonably, capriciously, maliciously and in blatant violation of his duty as a public officer” because he (Auditor-General) failed to inspect the evidence of work done by Kroll and Associates, as requested by the Senior Minister when the notice of intention to surcharge was issued.

The appeal was also grounded on the basis that the Auditor-General did not give the appellants a fair hearing, as he failed to serve them with the audit observation containing the said breaches that led to the surcharge.

On December 29, 2019, Kroll and Associates also filed a similar appeal against the surcharge on similar grounds and also pleaded that the firm could not be faulted for whatever sins were allegedly committed by the government of Ghana that led to the surcharge.
The court decided to consolidate the two appeals into one.

Court reasons

In her decision, Justice Asare-Botwe upheld all the grounds of appeals.

According to her, evidence on record proved that on October 8, 2019, the Senior Minister wrote to the Auditor-General that evidence proving that Kroll and Associates actually worked were available and, therefore, officers of the Audit Service could inspect and study it.

She said the Auditor-General, after receiving the letter, failed to inspect the evidence and rather went ahead and issued the surcharge and disallowance.

“No reason was given for the refusal, and nothing else was heard from the respondent (Auditor-General) other than the issuance of the notice that has culminated in these appeals,” she held.

It was the view of the court that the office of the Auditor-General eventually agreed to inspect the evidence after the matter had been referred to the Supreme Court, and “they expressed satisfaction with the work done”.

“It is clear, then, that had the respondent (Auditor-General) not been hasty, and had the respondent’s office taken up the offer to inspect the documents which would be made available for inspection, the whole issue of whether or not work had been done would have been resolved without this convoluted and tortuous legal battle,” Justice Asare-Botwe held.

According to the court, the agreement by the office of the Auditor-General to inspect the documents detailing evidence of work done by Kroll and Associates “was an acknowledgement” of failure on the part of the Auditor-General.

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