You failed to inspect job done by Kroll Associates, you can’t surcharge Osafo-Maafo; Court tells Domelevo and frees Osafo-Maafo & Co.

You failed to inspect job done by Kroll Associates, you can’t surcharge Osafo-Maafo; Court tells Domelevo and frees Osafo-Maafo & Co.

Kroll Associates: An Accra high court has cleared Yaw Osafo-Maafo, the Senior Minister, and five others from paying a US$1 million surcharge imposed by the Auditor General, Daniel Yaw Domelevo.

Court documents cited the five others as Michael Ayensu, Abraham Kofi Tawiah, Patrick Nomo and Eva Asselba Mends, all officials of the Ministry of Finance, and the UK-based Kroll and Associates.

Justice Afia Serwah Asare-Botwe set aside the surcharge on Friday 30 October 2020 after the court upheld two separate appeals filed by Osafo-Maafo and the others.

In her judgment, Justice Asare-Botwe said the Auditor-General had failed to exercise his discretionary power to issue the surcharge in a “fair” and “candid” manner and without arbitrariness, as enshrined under Article 296 of the 1992 constitution, the state-owned Daily Graphic reported.

“I hold that the respondent [the Auditor General] failed to abide by the well-known rules of natural justice of giving the appellants the opportunity to be heard,” she said.

Surcharge

In 2017 the Senior Minister, acting on behalf of the Government of Ghana, signed a contract with Kroll and Associates for the firm to do value-for-money auditing on certain projects, identifying wrongdoers and recovering assets from the said wrongdoers.

Kroll was reportedly paid $1 million for the job.

However, following an audit of the accounts of the Ministry of Finance, the Auditor General came to the conclusion that Kroll and Associates had been paid for no work done.

Acting under powers granted him in line with Article 187(7)(b) of the 1992 constitution, Domelevo surcharged the Senior Minister, the four Finance Ministry officials, and Kroll and Associates GHC5,510,353.73.

Appeal

Pursuant to Article 187(9) of the 1992 constitution, Osafo-Maafo and the four Ministry of Finance officials challenged the surcharge by filing an appeal at the Accra high court on 22 October 2019.

Counsel for the five appellants, Yaw Oppong, argued that the Auditor General had failed to observe due process and that he had failed to act within the remit of the law before issuing the surcharge.

Counsel argued that the Auditor General had acted “unreasonably, capriciously, maliciously and in blatant violation of his duty as a public officer”, because he (the Auditor General) failed to inspect the evidence of work done by Kroll and Associates, as requested by the Senior Minister when the notice of intention to surcharge was issued.

The appeal was also grounded on the argument that the Auditor General did not give the appellants a fair hearing, as he failed to serve them with the audit observation containing the said breaches that led to the surcharge.

On 29 December 2019, Kroll and Associates filed a similar appeal against the surcharge on similar grounds. It also pleaded that the firm could not be faulted for whatever sins were allegedly committed by the Government of Ghana which led to the surcharge. The court decided to consolidate the two appeals into one.

Court gives its reasons

In her decision, Justice Asare-Botwe upheld all the grounds of appeal.

She said evidence on record proved that on 8 October 2019, the Senior Minister wrote to the Auditor General that evidence proving that Kroll and Associates actually did the work commissioned was available and, therefore, officers of the Audit Service could inspect and study it.

She said the Auditor General, after receiving the letter, failed to inspect the evidence but rather went ahead and issued the surcharge and disallowance.

“No reason was given for the refusal, and nothing else was heard from the respondent [Auditor General] other than the issuance of the notice that has culminated in these appeals,” she held.

It was the view of the court that the Office of the Auditor-General eventually agreed to inspect the evidence after the matter had been referred to the Supreme Court, and “they expressed satisfaction with the work done”.

“It is clear, then, that had the respondent [the Auditor General] not been hasty, and had the respondent’s office taken up the offer to inspect the documents which would be made available for inspection, the whole issue of whether or not work had been done would have been resolved without this convoluted and tortuous legal battle,” Justice Asare-Botwe held.

According to the court, the agreement by the Office of the Auditor-General to inspect the documents detailing evidence of work done by Kroll and Associates “was an acknowledgment” of failure on the part of the Auditor-General.