An Accra High Court has dismissed application by a former member of the Board of Directors of the Ghana National Gas Company, Dr. Valerie Sawyerr, seeking an order of Certiorari to quash a forensic audit report.
The audit was carried out by a Cabinet Committee responsible for the coordination of investigations /forensic audits for the period ended, 30th June, 2018.
According to a certified copy of the judgement of the High Court dated the 9th of July, 2019 and signed by the Registrar of the High Court, Commercial Division, Justice Jennifer Dodoo, notes that according to the Applicant [Dr. Valerie Esther Sawyerr], the audit report made findings of procurement irregularities against the Dr. Kwesi Botchwey-led Board which also includes Eric Yankah, Thomas Manu, Dr. Valerie Esther Sawyerr and the then Chief Executive Officer of Ghana National Gas Company, Dr. George Sipa Yankey, as follows:
“Purchase from China National Aero Technology Import and Export Corporation (CATIC) have never been used for purpose of its purchase causing financial loss to the State ($54,800,000.00).”
“Equipment for the helicopters were not delivered even though it was part of the contract price of US$5,958,366.76”
“Abnitio training cost not fully utilized for its intended purpose (US$300,000.00)”.
The report further makes the following observations, findings and conclusions: “From the forensic audit reports, offences discovered include breach of the provisions of the Public Procurement Act, 2003(Act 663)and the Public Procurement (Amendment) Act, 2016 (Act 914) such as inflation of contracts sums, and non-performance of contracts”.
In the judgement, the Court notes that the Applicant [Dr. Valerie Esther Sawyerr], contends that those who carried out the audit “acted ultra vires their statutory powers, if any, when they purported to institute the said audit into Ghana National Gas Company Limited”.
It is a her contention further that, “Ghana Gas was a public corporation with the government of Ghana owning 100% shares and therefore formed part of the public accounts of Ghana within the meaning of Section 11(1) of the Audit Service Act, 2000 (Act 584). It was her case the trial judge observed that the accounts of Ghana Gas were “subject to audit exclusively by the Auditor General” and due to this argued that neither the Cabinet Committee responsible for the coordination of investigations /forensic audits nor the Attorney General nor Ghana Gas “has any statutory powers to commission or conduct any investigation or audit activities of Ghana Gas except under the express authority of the Auditor General or a person authorized by him.”
In a sharp contrast to the argument of the Applicant, the State indicates that Ghana Gas is a private company limited by liability and owned by the Ghana National Petroleum Corporation (GNPC) and therefore was not subject to the Auditor-General whose mandate was to only audit public companies in consonance with Article 187 of the 1992 Constitution and Section 11 of the Audit Service Act, 2000, (Act 584).
The Court in dismissing the application said it was an investigation that was carried out into the operations of Ghana Gas and that after the investigations had been carried out into the operations of Ghana Gas and based on the report presented, the State was in a position to have acted upon the report and to take a decision affecting the Applicant’s rights.
“In doing so, they would have been enjoined to offer her [Dr. Valerie Esther Sawyerr] a hearing. As affirmed by the Applicant, she was invited to the 2nd Respondent (EOCO’s) head office”.
“It was for the 2nd Respondent, on whose behalf the report was commissioned, who had the power of making a decision which would affect her rights to offer her a hearing which they did by issuing her with an invitation. The 2nd Respondent issued to her, an invitation to assist in investigations. Had they not done so, any decision they had taken would have been in breach of her rights to a fair hearing,” the judgement read.
“Since I have found no breach of natural justice or error on the face of the report which is merely investigatory, I do not find the remedy of certiorari to be appropriate in this instance. Same is hereby refused,” the Judge ruled.