A former Deputy Chief of Staff, Ms Valerie Sawyerr, has failed in her legal action challenging certain audit findings, which, reportedly, implicated her in alleged procurement breaches when she was a board member of the Ghana National Gas Company (Ghana Gas).
In a ruling on Tuesday, 9 June 2019, the Accra High Court dismissed Ms Sawyerr’s application for judicial review which sought an order from the court to quash the audit conducted by a private firm, Morrison & Associates, which was engaged by the Economic and Organised Crime Office (EOCO).
Ms Sawyerr had argued in her application that it was the Auditor-General who had the mandate to conduct an audit of Ghana Gas and not a private firm engaged by EOCO.
It was also her contention that the audit findings breached the rules of natural justices because she was not given a fair hearing to respond to the findings.
The former Deputy Chief of Staff filed the application on October 8, 2018.
Attached to the application as respondents were the Attorney-General (A-G), EOCO and Assistant Commissioner of Police K.K Amoah (retd), the Executive Director of EOCO at the time.
Delivering her ruling, the presiding judge, Justice Jennifer Dodoo, held that EOCO did not breach any law in engaging the private firm to conduct the audit.
She said the audit was part of an investigative process, and, therefore, EOCO had the legal backing to rely on it for its investigative processes.
On the issue of the breach of natural justice, the court held that EOCO, indeed, gave Ms Sawyerr a hearing by inviting her on the basis that she was a subject of interest.
The said invitation letter, the court said, was part of the exhibits the applicant attached to her application.
In view of that, the court said, Ms Sawyerr was given an opportunity to be heard, and, therefore, there was no breach of the rules of natural justice.
Ms Sawyerr’s lawyer was Mr Godwin Edudzi Tamakloe, while a Deputy Attorney-General, Mr Godfred Yeboah Dame, represented the state.
Ms Sawyerr’s case
Ms Sawyerr was a member of the Board of Directors of Ghana Gas between August 2011 and January 2016.
On October 19, 2017, EOCO engaged a private firm, Morrison & Associates, to conduct a forensic audit into some state organisations, including Ghana Gas.
As a result of the forensic audits, EOCO, on September 25, 2018, invited Ms Sawyerr by text message to meet ACP Amoah (retd) for questioning with regard to ongoing investigations into the activities of Ghana Gas.
It was, however, the case of Ms Sawyerr that the recruitment of Morrison & Associates to audit the accounts of Ghana Gas was a violation of the country’s laws since the 1992 Constitution gave the Auditor-General the sole authority to audit the public accounts of Ghana
The applicant further stated that the Auditor-General, Mr Daniel Yaw Demelevo, on October 1, 2018, responded to her official enquiry indicating that he had not commissioned Morrison & Associates to audit Ghana Gas, and did not have the report she was requesting.
She also contended that under the Public Procurement Act, 2003 (Act 663), it was only the Public Procurement Authority that had the power to investigate alleged breaches of procurement laws.
Ms Sawyerr further argued that EOCO did not give her a fair hearing, and, therefore, its investigations breached the rules of natural justice and were, therefore, unlawful.
The applicant also contended that the appointment of ACP Amoah (retd) as Executive Director of EOCO contravened Article 199 of the 1992 Constitution since he was above the age of 60.
In a response by Mr Dame, the A-G first raised a preliminary legal objection describing the application as “incompetent” due to the joining of ACP Amoah (retd) as a respondent.
According to the A-G, EOCO’s Executive Director is a public officer, and, therefore, could not be sued in that capacity.
The law, the A-G stated, enjoined all persons taking legal action against the government or public officials to direct such actions against the A-G, who is the principal legal advisor to the government.
“Article 293 of the Constitution prevents a public official from being held personally liable for suits arising in the course of the performance of his professional or public functions,” the A-G argued.
On the issue raised by Ms Sawyerr that it was only the Auditor–General that could audit the accounts of Ghana Gas, the A-G argued that “Ghana Gas is a private company limited by liability owned by the Ghana National Petroleum Corporation.
“Therefore, in terms of the Constitution, specifically Article 187 (2), and Section 11 of Act 584, Ghana Gas is not subject to the audit powers of the Auditor-General,’’ it said.
It is also the case of the A-G that the engagement of Morrison & Associates by EOCO did not breach any procurement laws since the audit firm was not procured with public funds.
Source: Daily Graphic