SOFTRIBE GHANA LIMITED v. THE AUDITOR-GENERAL
July 28, 2022
COURT OF APPEAL
GHANA
CORAM
- HENRY KWOFIE, J.A (PRESIDING)
- AMMA A. GAISIE (MRS), J.A
- ERIC BAAH, J.A
Areas of Law
- Administrative Law
- Constitutional Law
- Civil Procedure
- Human rights Law
July 28, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
In a minority opinion by ERIC BAAH, J.A., the Court of Appeal considered an appeal arising from a High Court dismissal of a human rights application by a private company previously contracted by the Controller and Accountant-General’s Department (CAGD) to develop and maintain the IPPD3 payroll system. After CAGD confirmed the company’s entitlement to GH¢13,142,375.00 and wrote to the Ministry of Finance (MOF), the Auditor-General disallowed the payment in a report on public liabilities. The Appellant alleged it was never notified of the audit or decision, breaching audi alteram partem and constitutional administrative justice (Articles 23 and 296). The High Court held appeal was the exclusive remedy (relying on Ex parte Ms Arch Adwoa), but Baah, J.A. reasoned that Article 33(1) enforcement and judicial review remain available when fundamental rights are at stake, and that the Auditor-General must act fairly and candidly. He would quash the disallowance, order a fair hearing, and award damages and costs.
BAAH, J. A:
INTRODUCTION
Role of a judge in a democracy
My Lords, in the best traditions of our calling, and in tandem with the democratic judicial right to differ in opinion, I present this minority speech, which is dictated by the evidence; as much as I appreciated it, by the law; as much as I know it, and by my conscience.
The role of judges in a young and fragile democracy, such as ours, is not merely to indifferently decide cases by applying inanimate rules of law to evidence adduced before us. Our role goes far beyond that. Every judge in a democratic state; from the Magistrate to the Lords of the Supreme Court, must apply the rules of law in a manner that vindicates and nourishes our constitutional and democratic principles, values and norms.
We must be hostile to creeping practices and decisions of quasi-judicial administrative bodies that bites even an inch of the democratic tree. We cannot waive our response or close our eyes to an autocratic act or decision by an adjudicating public individual or an institution, merely because we consider it trivial, or that it inured to the State. We should not becloud ourselves in technicalities, when the net effect is deprivation of a constitutionally guaranteed fundamental human right of a citizen, whether natural or artificial. What is good for the State, must equally be good for the citizen. A wise saying counsels:
‘’ Watch the little things. A small leak may sink a great ship.’’
We risk sinking our great ship (Nation) if we allow leaks (autocratic decisions) by State institutions to fester. We lose the spirit of democracy, if we allow citizens to go remedy-less in the face of blatant abuse of their rights, on account of the perpetrator being a State institution.
Aharon Barak, the eminent jurist, author and former Chief Justice of the State of Israel, in the case of Verner v Chairman of the Israeli Labor Party (H.C. 5364/94, 49(1)P.D.758, admonished:
‘’ The struggle for the law is unceasing. The need to watch over the rule of law exists at all times. Trees that we have nurtured for many years may be uprooted with one stroke of the axe. We must never relax the protection of the rule of law. All of us-all branches of government, all parties and factions, all institutions- must protect our young democracy. This protective role is conferred on the judiciary as a whole, and on the Supreme Court in particular. Once again, we, the judges of this generation, are charged with watching over our basic values