April 6, 2022
SUPREME COURT
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Lovelace-Johnson JSC, dismissed an original-jurisdiction suit filed by an officer of the Microfinance and Small Loans Centre (MASLOC). During his criminal trial in the High Court, the Economic and Organised Crime Office (EOCO) had engaged Baffour Awuah & Associates to prepare a draft audit report that the Attorney-General intended to rely on. The plaintiff sought declarations that Article 187 vested exclusive auditing authority in the Auditor-General, that prosecution for public financial misconduct required prior disallowance and surcharge under Article 187(7), and that the Attorney-General could not authorize or rely on a private audit without reference to the Auditor-General. The Court held Articles 187 and 88 are clear and unambiguous; Article 187 does not confer exclusive audit rights, EOCO may engage auditors to aid investigations, and the Attorney-General’s prosecutorial mandate under Article 88 is not conditioned on surcharges or appeals under Article 187(9). The Court refused a restraining order and found no evidence of neglect by the Auditor-General, concluding the interpretation jurisdiction was not properly invoked.
LOVELACE-JOHNSON (MS) JSC:-
The Plaintiff by the present writ seeks to invoke the original jurisdiction of this court under article 2(1) and 130 (1) of the 1992 Constitution for the following five declarations and a subsequent order based on the interpretation of the clauses of article 187 stated therein:
1. A declaration that upon a true and proper interpretation of Article 187 (3) of the Fourth Republican Constitution of the Republic of Ghana
(“Constitution”),the Auditor-General of the Republic of Ghana (“Auditor General”) is the sole person to have access to all books records returns and other documents relating to public accounts for the purposes of auditing therefore any unauthorized auditing by any other person without reference to the Auditor-General is an infringement on the constitution and therefore null and void.
2. A declaration that upon a true and proper interpretation of Article 187(7)(b)(i)(ii) and (iii) of the Constitution, there must have been a disallowance and a surcharge before the Attorney-General and prosecute a person whom the Auditor General has surcharged so that the amount may be recovered from the person by whom the amount should have been brought into account, therefore any prosecution in respect public account not based on surcharge is null and void as same is not in accordance with the provisions of the Constitution.
3. A declaration that upon a true and proper interpretation of Article 187 (9) of the Constitution, where a person aggrieved by a disallowance or surcharge made by the Auditor General may appeal to the high court, such a person cannot exercise this constitutional right of appeal where the Defendant is allowed to audit public accounts and prosecute PUBLIC SERVANTS without reference to the Auditor General.
4. A further declaration that upon a true and proper interpretation of Article 187 (8) of the Constitution, the Defendant can act in the name of the President
and direct the Auditor-General to perform a particular audit for him and not act without reference to the Auditor.
5. A further declaration that the failure, refusal or neglect by the Auditor General to issue any disallowances and surcharges in respect of (i) unlawful items of expenditure, (ii) amounts not brought into account, and (iii) losses and deficiencies incurred through negligence and misconduct can be rectified by enforcing the provisions of the constitution
6. An order directed at the Defendant to restrain its agencies not to engage