Auditor General has no powers to surcharge Zoomlion – Supreme Court

A seven-member panel of the Supreme Court presided over by Justice Jones Dotse has ruled that the Auditor General cannot surcharge Waste Management company Zoomlion Ghana.

The surcharge was an issue after an audit of accounts of the National Health Insurance Authority made findings that Zoomlion had between the years 2007 and 2018 allegedly been paid a total amount GH¢184,901,650.00

The apex court while determining the constitutionality of a GH¢184 million surcharge slapped on Zoomlion Ghana Limited by the Auditor-General’s Department said due to the peculiar fact of the case, the respondent is not liable to the powers of the Auditor-General.

The court, therefore, directs the Court of Appeal to determine the case before it based on what the Supreme Court has said.

The court said its full reasons would be made ready at the Registry of the Court for the parties to pick up on Friday.

The panel of the apex court was giving an interpretation of the constitutional provision that gives the Auditor-General the power to disallow expenditure and surcharge people.

In October 2018, the Auditor-General, Daniel Yao Domelevo issued a surcharge and disallowance against the waste management company for over GH¢184 million for a fumigation exercise carried out for the Ministry of Health (MOH) but which was paid by the National Health Insurance Authority (NHIA).

The surcharge was issued after an audit of the accounts of the NHIA made findings that Zoomlion had between the years 2007 and 2018 allegedly been paid a total amount of GH¢184,901,650.00 without due process.

According to the Auditor-General, Zoomlion continued to receive payment for the fumigation exercise up to August 2018 even though the four-year contract that started in 2009 had ended.

“Dissatisfied, on February 6, 2020, 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,” the report indicates.

The apex court was interpreting Article 187 (7) (b) (i) of the 1992 Constitution which 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”.

“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."

No evidence of fraud established against Zoomlion

Earlier, Justice Mensah Datsa cleared Waste Management giant Zoomlion Ghana Limited of any allegations of fraud as alleged by the Auditor General.

The court in its ruling on the matter particularly on the allegations of fraud, the court said the Auditor General had not been able to establish any case of fraud against the Waste Management company.

Justice Mensah Datsa’s court held that the Respondent had not established that the Appellant (Zoomlion) had defrauded the state.

The court further stated that the state institutions involved – the Ministry of Health and the National Health Insurance Authority, acting through the various officers named by the Respondent as having made payments to the Appellant without due process, ‘might have been negligent.

It was the case of Zoomlion that, the Auditor General “erred on its finding that the Appellant had been paid a total amount of GHc184, 901650.00 without due process and this has occasioned a grave miscarriage of justice.”

It also contended that, “the Respondent erred in its finding that the Appellant had between the year 2007-2017, been paid an amount of GHc184, 901650.00 devoid of due process without affording or giving the Appellant the opportunity to respond to the allegation therefore it breaches the rule of natural justice and this has occasioned a brave miscarriage of justice.”