ZOOMLION GHANA LIMITED v. THE AUDITOR-GENERAL
2020
SUPREME COURT
GHANA
CORAM
- DOTSE, JSC (PRESIDING)
- APPAU, JSC
- PWAMANG, JSC
- MARFUL-SAU, JSC
- OWUSU (MS), JSC
- HONYENUGA, JSC
- AMADU, JSC
Areas of Law
- Constitutional Law
- Administrative Law
2020
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Supreme Court of Ghana reference arose from an appeal pending before the Court of Appeal concerning a massive surcharge issued by the Auditor-General against a private company that performed a contract for the National Health Insurance Authority (NHIA). After auditing NHIA’s accounts from January 2007 to April 2018, the Auditor-General concluded that payments to the company were made without following due process and issued disallowance and surcharge notices, demanding GHC 184,901,650 be paid to the Consolidated Fund. The company appealed to the High Court, which found no fraud or wrongdoing by the company, though NHIA officers might have been negligent or reckless; it nevertheless dismissed the appeal and confirmed the surcharge. The Court of Appeal referred to the Supreme Court the question whether the Auditor-General can surcharge persons other than public officers under Article 187(7)(b)(i). Accepting the Respondent’s concession that sub-clauses (i)-(ii) do not reach private persons, and finding no negligence or misconduct by the company, the Supreme Court held sub-clause (iii) inapplicable. Occupy Ghana and CHRAJ v Attorney-General were distinguished, and the Court directed the Court of Appeal to proceed accordingly.
JUDGMENT_______________________________
AMADU JSC:-
INTRODUCTION
By reference from the Court of Appeal dated 29th October 2020, the jurisdiction of this court was invoked in accordance with article 130(2) of the Constitution, for the determination of the question “whether or not in the exercise of his functions under article 187(7)(b)(i) of the Constitution the Auditor General can make a surcharge against a person other than a public officer”.
It is provided for under articles 130(1)(a) and (b) and 130(2) of the 1992 Constitution as follows:-
“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 jurisdiction in:
all matters relating to the enforcement or interpretation of
this constitution and
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”.
Article 130(2) of the Constitution provides that:
“(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”.
In the exercise of the interpretation jurisdiction of this court under Article 130(1) and (2) of the 1992 Constitution, it is important to examine what constitutes a genuine and real question for determination as was set out in the case of the Republic V. Special Tribunal Ex-parte Akosah [1980] GLR 592 and 605 in which the enforcement and interpretation jurisdiction of this court was invoked under article 118(1)(a) of the 1979 Constitution which is in pari materia with article 130(2) of the 1992 Constitution. There, the test was set out as follows:-
“(a) Where the words of the provision are imprecise or unclear or
ambiguous. Put in another way, it arises if one party invites the court to declare that the words of the article have a double meaning or are obscure or else mean something different from or more than what they say;
(b) Where rival meanings have been placed by the litigants on
the words of any provision of the Constitution;
(c) Where there i