An Accra High Court has set aside audit findings and a notice of certification and specification of disallowance and surcharge brought against a former Chief Executive of the National Health Insurance Authority (NHIA), Sylvester Mensah, and his deputy in-charge of finance and investment, Alex Nartey by the Auditor-General.
The Court, presided over by Justice Mrs. Georgina Mensah-Datsa last week ruled that the audit and the subsequent notice of surcharge against the two did not follow due process, and therefore proceeded to set it aside.
The said audit found that the NHIA, under the tenure of appellants, made some payments to Zoomlion without following due processes.
The two, Mr. Mensah and Mr. Nartey, aggrieved by the report, appealed the findings of the Auditor-General at the High Court on the basis that they were never informed of the audit and not given an opportunity to respond to the audit outcomes contrary to law and practice.
According to them, they were not even served the notice of certification and specification of disallowance and surcharge and that they only read it in the media.
They told the Court their “attention was drawn to the Auditor-General’s Special Report on Disallowances and Surcharges, together with notices of specification and certification of disallowances and/or surcharge dated 29th October 2018 in the media on 5th January 2019 which was directed at them.”
The appellants further stated that upon hearing of the notices in the media, “they went to the offices of the Auditor-General on the 8th January, 2019 to ascertain the legitimacy of the report since the alleged audit process was never brought to their attention nor were they ever consulted for any clarification or response to any audit query.”
Counsel for the appellants also indicated to the court that at all times during his clients’ tenure at the NHIA, they acted within the confines of Regulation 39 of the Financial Administration Regulation LI 1892.
He indicated that whatever payments authorized for which the Auditor-General deemed inappropriate and therefore necessitated the certificate of disallowance was all covered and sanctioned by the law of the NHIA.
Counsel for the Audit Service averred that it would be far-fetched for the service to go out looking for individuals who have worked with or were managers in entities or organizations to get them served anytime there was an infraction against such persons, and that the practice was to serve the organization since they have contacts to the concerned persons. According to him, “in the instant Case the auditee, that is, NHIA blatantly failed to inform the appellants but rather returned the observation back to the Audit Service.”
After hearing from both sides, Justice Mensah-Datsa said “I have carefully considered the facts and circumstances of this matter and I am persuaded by the appellants’ case and the submissions made in support of it. It is obvious that the appellants herein were not given a hearing by the respondent as demanded by law before the adverse findings were made against them and I find that as a fact.
“The respondent herein failed to give the appellants a hearing and this is a breach of the rules of natural justice and articles 23 and 296 of the 1992 Constitution. It is therefore in the interest of justice that the appeal be granted on this basis.”
She consequently set aside the audit findings and the notice of certification and specification of disallowance and surcharge, by the Auditor-General on Sylvester Mensah and Alex Nartey.