By a unanimous decision, a seven-member panel of the Supreme Court (SC) on Thursday stated that the Auditor-General does not have the power to surcharge Zoomlion Ghana Limited, a leading waste management company.
The court, presided by Justice Jones Dotse did not assign reasons for its decision, but said the judgement would be ready today, December 4.
In 2018, Auditor-General, Mr Yao Domelevo, issued a disallowance surcharge of GHc184 million against Zoomlion Ghana Limited over a fumigation exercise carried out for the Ministry of Health.
According to the Auditor-General, the contract between Zoomlion and government was for a period of four years, however, Zoomlion received payments after the expiration of the contract.
In 2019, the Financial and Economic Division of the Accra High Court upheld the surcharge against the waste management company.
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, 2020, the High Court, presided by Justice Georgina Mensah-Datsa, dismissed the appeal.
Displeased by the decision of the High Court, Zoomlion appealed the decision at the Court of Appeal on February 6, 2020.
The Court of Appeal realised that there was constitutional interpretation to the case and subsequently referred it to the SC.
Zoomlion had argued that the constitutional power of the Auditor-General to surcharge, applied to only public officials and entities and not private entities like the company.
A three-member panel of the Court of Appeal referredArticle 187 (7) (b) (i) of the 1992 Constitution to the SC for interpretation.
The said constitutional provision 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.”
The SC answered “whether or not in the exercise of his function, under Article 187 (7) (b) (i) of the 1992 Constitution, the Auditor-General can make a surcharge against a person other than a public officer.”
That was after an audit conducted by the Auditor-General on the accounts of the NHIA made findings that Zoomlion had between the year 2007 and 2018 allegedly been paid a total amount of GH¢184,901,650.00 devoid of due process.
BY MALIK SULLEMANA