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OCCUPYGHANA v. ATTORNEY-GENERAL – JUDGMENT

Saturday, July 8th, 2017

OCCUPYGHANA V. ATTORNEY-GENERAL
(Unrepoprted, Supreme Court, Writ No. J1/19/2016, 14th June 2017)

Coram: Akuffo, Adinyira, Dotse, Yeboah, Baffoe-Bonnie, Gbadegbe, Bennin JJSC

JUDGMENT (Dotse, JSC read the unanimous judgment of the Court):

Article 187(7)(b)(i), (ii) and (iii) of the Constitution 1992, provides as follows:-

In the performance of his functions under this Constitution or any other law the Auditor-General… (b) may disallow any item of expenditure which is contrary to law and
(i) surcharge the amount of any expenditure disallowed upon the person responsible for incurring or authorizing the expenditure; or
(ii) any sum which has not been duly brought into account, upon the person by whom the sum ought to have been brought into account;
or
(iii) the amount of any loss or deficiency, upon any person by whose negligence or misconduct the loss or deficiency has been incurred.

Based on the above constitutional provisions referred to supra, the Plaintiffs claim the following reliefs against the Defendants before this court:

(1) That upon a true and proper interpretation of Article 187(7)(b)(i) of the Constitution, the Auditor-General is bound to issue a disallowance or surcharge where there has been any item of expenditure on behalf of the Government that is contrary to law, so that the amount unlawfully expended is recovered from the person who was responsible for, or authorised, the expenditure disallowed.

(2) That upon a true and proper interpretation of Article 187(7)(b)(ii) of the Constitution, the Auditor-General is bound to issue a disallowance and surcharge where any person fails to bring any sum into the Government’s account, so that that amount is recovered from the person by whom the amount should have been brought into account.

(3) That upon a true and proper interpretation of Article 187(7)(b)(iii) of the Constitution, the Auditor-General is bound to issue a disallowance and surcharge where the Government suffers or incurs a loss or deficiency through the negligence or misconduct of any person, so that the value of the loss or deficiency is recovered from that person (whether or not a public servant).

(4) That the failure, refusal or neglect by the Auditor-General to ever issue any disallowances and surcharges in respect of (i) unlawful items of expenditure, (ii) amounts not brought into account, and (iii) losses and deficiencies incurred through negligence and misconduct, as set out in successive Reports of the Auditor-General issued since the coming into force of the Constitution, are violations by the Auditor-General of his/her obligations under the Constitution and

(5) That the Auditor-General be ordered to issue disallowances and surcharges to and in respect of all persons and entities found in successive Reports of the Auditor-General to have been responsible for or to have authorised unlawful items of expenditure, not bringing sums into account, or having caused loss or deficiency through negligence or misconduct, in accordance with Article 187(7)(b) of the Constitution.

FACTS RELIED UPON BY PLAINTIFFS

The facts relied upon by the Plaintiffs who are a pressure and advocacy group, incorporated under the laws of Ghana can briefly be summarised as follows:-

That the Auditor-General pursuant to article 187(2) of the Constitution, has been given the constitutional responsibility to audit and issue a report therein in respect of the public accounts of Ghana and of all public offices which in this instance includes the courts, the central and local government administrations, of the Universities and public institutions of like nature, of any public corporation or other body or organisations established by an Act of Parliament.

The Plaintiffs further draw attention to article 187(5) of the Constitution which enjoins the Auditor-General to carry out the audit of the public accounts within 6 months of the preceding financial year and submit a report, and “shall in that report draw attention to any irregularities in the accounts audited and to any other matter which in his opinion ought to be brought to the notice of Parliament.”

In this respect, the Plaintiffs referred to sections 20(1) and (2) of the Audit Service Act, 2000 (Act 584) and section 2 thereof in particular which provides and states in material particulars what this report to Parliament by the Auditor-General is required to draw attention to in cases in which he has observed the following:-

(a) an officer or employee of Government has willfully or negligently omitted to collect or receive any public money due to the Government;
(b) any public money was not duly accounted for and paid into the Consolidated Fund or other designated public account;
(c) an appropriation was exceeded or was applied for a purpose or in a manner not authorized by law;
(d) an expenditure was not authorized or properly vouched for or certified;
(e) there has been a deficiency through fraud, default or mistake of any person;
(f) applicable internal control and management measures are inefficient or ineffective;
(g) the use or custody of property, money, stamps, securities, equipment, stores, trust money, trust property or other assets has accrued in a manner detrimental to the state;
(h) resources have not been used with due regard to economy, efficiency and effectiveness in relation to the results attained;
(i) in the public interest, the matter should be brought to the notice of Parliament.

It has to be noted that, the above provisions of the Audit Service Act, have taken their authority from Article 187(7)(b) of the Constitution already referred to supra, which empowers the Auditor-General to disallow any item of expenditure which is contrary to law, and having done so to:

(i) surcharge the amount of any expenditure so disallowed upon the person responsible for incurring or authorizing the expenditure, or
(ii) direct that, any sum which has not been duly brought into account, be brought into account upon the person by whom the sum ought to have been brought into account, or
(iii) direct that the amount of any loss or deficiency, be brought upon any person by whose negligence or misconduct the loss or deficiency has been incurred.

In other words, the person by whose conduct of negligence or misconduct the loss or deficiency occurred must be held liable.

The Plaintiffs further asseverate that since the inception of the 4th Republican Constitution on 7th January 1993, the Auditor-General has failed, neglected and or refused to carry out his mandate in fulfillment of the constitutional obligations referred to supra, which would have entitled him to retrieve the amounts, losses and or deficiencies from the offending persons for the benefit of the good people of the Republic of Ghana. This conduct of the Auditor-General according to the Plaintiffs is a violation of his constitutional mandate and obligations under Article 187(7)(b) of the Constitution.

In pursuance of their resolve to ensure that the Auditor-General complies with the above constitutional obligations referred to supra, the Plaintiffs on 12th November 2014 addressed a letter exhibited to these proceedings as Exhibit OG3 entitled “Request for the Exercise of Auditor-General’s Powers of Disallowance and Surcharge, and Notice of Action.”

In that letter, the Plaintiffs state in part as follows:-

We have studied the Auditor-General’s Audit Reports to Parliament for the eleven (11) years between the year ended 31st December 2002 and the year ended 31st December 2012. In that period, the Auditor-General has identified a wide range of stolen and/or misappropriated funds which are due to the public purse. Nevertheless, and quite without explanation, although the Auditor-General is known to have made “recommendations”, OccupyGhana and most Ghanaians are not aware of a single instance in which a Disallowance and Surcharge has been made by the Auditor-General or any of his offices.

The Plaintiffs then requested the Auditor-General to either comply with the constitutional obligations therein stated or face a legal challenge after the expiration of 30 days from the date of the letter.

The Auditor-General responded to the said letter on 9th December, 2014 and attached written comments therein, and this is marked as Exhibit OG4 in these proceedings.

We deem it appropriate at this stage to quote in extenso the relevant portions of this Exhibit OG4 as follows:-

14. On the matter of procedural precedence under the laws of Ghana, there is an issue of timing of the exercise of discretionary power given to the Auditor-General under Article 187(7)(b) of the Constitution. Article 187(5) of the Constitution requires the Auditor-General to send this report on all irregularities (disallowance items included) to Parliament for consideration. Under section 23 of the Audit Service Act, the reports of the Auditor-General become public documents as soon as they have been presented to the Speaker to be laid before Parliament.
15. The question is, should the Auditor-General exercise his discretionary power of surcharge and start to disclose his findings through the courts for public consumption before submitting his report to Parliament or after submission to Parliament.

It would appear that, the Auditor-General clearly perceives this power of disallowance and surcharge granted him under Article 187(7)(b) of the Constitution as discretionary and this therefore meant he is not bound to apply or enforce those provisions.

In conclusion, the Auditor-General reiterated the fact that his office has since July 2013 collaborated with the office of the Attorney-General through the formation of a joint committee to enquire into cases cited in the Auditor-General’s reports spanning 2006-2011.

According to the Auditor-General as per the response in OG4 which we again refer to in extenso, “the mandate of the Committee was to review all cases in the Auditor-General’s report covering this period for further action. The result of the Committee’s work after several sittings since 2013 indicate that about 85% of the cases in the Auditor-General’s Report for the period covered, only required administrative actions by the institutions concerned because they derive from non-compliance with applicable laws, policies and procedure”

Feeling dissatisfied with the above explanations, the Plaintiffs instituted the instant action against the Attorney-General who is the nominal Defendant for and on behalf of the Auditor-General.

We must commend legal counsel for the Parties for well prepared statements of case in which they argued inter alia the following:-

(1) Whether the original jurisdiction of the court was properly invoked
(2) The powers and constitutional obligations of the Auditor-General of disallowance and surcharge under article 187 (7) of the Constitution.
(3) The Auditor-General’s narrow interpretation of his obligations under the said articles referred to supra which the Plaintiff’s consider as wrong, and
(4) The closing arguments of the Plaintiffs and Defendants in their statement of case.

CLOSING ARGUMENTS OF PLAINTIFF

The Plaintiffs concluded their arguments in the statement of case as follows:-

Your Lordships, we have attempted in these submissions to answer the further issues set out joint (sic) by the parties. We will have humbly contended that the Auditor-General does not fully meet his obligations under Article 187(7)(b) when he conducts audits and prepares reports that show financial irregularities. Those constitutional obligations to disallow and surcharge are only discharged when, upon discovering financial irregularities, the Auditor-General takes (sic) follows the deliberate statutory steps to disallow them and then surcharge the persons responsible for causing them with any amounts lost to the State. We have also respectfully argued that the Auditor-General’s obligations do not even terminate when he issues a certificate of the Disallowances and Surcharges. The law has created a bifurcated enforcement responsibility, first on the public entity with respect to which the irregularity occurred to receive payment within 60 days. When the amount surcharged is not paid, the head of that public entity has to institute civil action to recover same. However, if the person surcharged files an appeal against the Disallowance and Surcharge, the Auditor-General is made the statutory respondent to that appeal. However, even this bifurcated enforcement responsibility cannot commence or arise unless and until the Auditor-General has first performed his Disallowance and Surcharge obligations.

THE DEFENDANTS CASE

The Defendants on their part contended through learned Solicitor-General, Mrs. Helen Ziwu that the Auditor-General has not failed to carry out the constitutional mandate he bears by virtue of Article 187(7)(b) of the Constitution as is contended by the Plaintiffs. The Defendants further argued that the powers of discharge and disallowance vested in the Auditor-General are set out in section 17 of the Audit Service Act, 2000 (Act 584). We therefore deem it appropriate at this stage to set out in detail the provisions of this section 17 of Act 584.

17. Disallowance and surcharge by Auditor-General
(1) The Auditor-General shall specify to the appropriate head of department or institution the amount due from a person on whom a surcharge or disallowance has been made and the reasons for the surcharge or disallowance.
(2) A sum of money specified by the Auditor-General to be due from a person shall be paid by that person to the department or institution within sixty days after it has been so specified.
(3) A person aggrieved by a disallowance or surcharge made by the Auditor-General may appeal to the High Court not later than the expiration of sixty days prescribed in subsection (2).
(4) In accordance with article 187(10), the Rules of Court Committee may, by constitutional instrument, make Rules of Court for the purposes of subsection (3) of this section.
(5) A sum of money which is lawfully due under this section is recoverable, on civil proceedings taken by the head of department in a Court as a civil debt and where the person surcharged is in receipt of remuneration from the Government or an institution, the remuneration shall be attached to the extent of the sum lawfully due.

In other words the roadmap which the Auditor-General is expected to follow whenever he exercises his powers of surcharge or disallowance pursuant to Article 187(7)(b) and section 17 of Act 584 supra are the following:-

(i) The Auditor-General shall indicate to the appropriate head of department or institution the amount due from the person on whom the surcharge or disallowance has been raised and the reasons for it.
(ii) The sum of money indicated by the Auditor-General to be due from a person shall be paid by that person to the department or institution within 60 days after it has been indicated
(iii) An aggrieved person has 60 days from the date of the indication in subsection 2 supra to appeal against the discharge or surcharge made by the Auditor-General.
(iv) The Rules of Court Committee have been mandated under Article 187(10) of the Constitution to make Rules of Court for the actualization of subsection 3 of section 17 of Act 584.
(v) Any sum of money due under this section 17 is recoverable, by civil proceedings taken by the head of department in a court as a civil debt and where the person surcharged is on Government payroll, his salary or entitlements shall be attached to the extent of the sums lawfully due.

The above road map indicates quite clearly that the powers of the Auditor-General in respect of this Surcharge and Disallowance are really extensive and are intended to ensure that any monies that are lost through any of the processes mentioned in Article 187(7)(b)(i), (ii) and (iii) are recovered to the state.

CLOSING ARGUMENTS OF DEFENDANTS

The Defendants summarised their closing arguments very briefly as follows and we wish to quote them accordingly thus:

My Lords, we respectfully submit, in conclusion that the Auditor General’s obligations end when he carries out his statutory mandate as set out in section 17(1) of Act 584 and section 84 of Act 921 and in this regard, it is respectfully contended on behalf of the Defendants that the Auditor-General has from the inception of the 1992 Constitution carried out his statutory mandate of disallowance and surcharge.

DEFENDANTS RAISE JURISDICTIONAL ISSUE

The Defendants raised a jurisdictional point against the Plaintiffs writ thus:

The Plaintiff has not made out a proper case which will require this honourable court to make any declarations within the meaning of Article 2(1)(b) of the 1992 Constitution, and it is respectfully urged on this court to dismiss this action.

MEMORANDUM OF ISSUES

At the close of pleadings, the following issues were set down in the joint memorandum of issues agreed upon by the parties:

(1) Whether or not the Auditor-General fully discharges his constitutional obligation simply by auditing and pointing out financial irregularities in the accounts of a public entity.
(2) Whether or not the Auditor-General has an obligation to ensure that his powers of disallowance and surcharge duly exercised are complied with by the public entity or official directly affected by the Auditor-General’s exercise of his power of disallowance and discharge.

After the setting down of the above issues, this court by an order dated 31st January 2017 requested the parties and/or their counsel to file legal arguments in respect of the said two issues.

We observe that the parties have complied with the said orders.

On the 7th of March 2017 this court again directed that further arguments of law be filed by the parties and or counsel in respect of the issue of whether the Plaintiffs have properly invoked this court’s jurisdiction.

We observe that, this order has been complied with only by learned Counsel for the Plaintiffs, Thaddeus Sory. We will therefore proceed to deal with these issues, and since jurisdiction is primary, we will deal with that first.

HAVE THE PLAINTIFFS PROPERLY INVOKED THE ORIGINAL JURISDICTION OF THE COURT?

It is to be noted that Articles 2(1)(a) and (b) and 130 of the Constitution deals with the original jurisdiction of the Supreme Court. Thus the Plaintiffs action in the instant case must be measured in terms of the said provisions of the Constitution.

Out of abundance of caution, these provisions provide as follows:-

2. (1) A person who alleges that
(a) an enactment or anything contained in or done under the authority of that or any other enactment; or
(b) any act or omission of any person
is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.

130. (1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in
(a) all matters relating to the enforcement or interpretation of this Constitution; and
(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.

In their closing arguments, learned counsel for the Defendants submitted that the Plaintiffs have not made a proper case to require this court exercise it’s jurisdiction in their favour, and urged the Court to dismiss the action.

Predictably, the Plaintiffs anticipated this type of jurisdictional objection and stated as follows in their original statement of case:-

From the facts so far recounted, the Plaintiff’s case falls squarely within the first ambit of the court’s original jurisdiction as classified by the court in the Edusei Case [1998-99] SCGLR 753 at pages 771-772.

What then are the principles in Edusei (No. 2) v Attorney-General referred to supra?

In that case, it was noted by Kpegah JSC that “in determining the scope or extent of this court’s original jurisdiction,” we must read together articles 2 (1) and 130 (1) of the Constitution. And in reading the two articles together, “the courts exclusive original jurisdiction can be said to be in respect of the following situations:
(1) enforcement of all provisions of the Constitution, except those provisions contained in Chapter 5 dealing with Fundamental Human Rights, or
(2) the interpretation of any provision of the Constitution; or
(3) an issue whether an enactment is inconsistent with any provision of the Constitution.”

The Plaintiffs have also filed a response in compliance with this court’s order dated 7th March 2017, on this jurisdictional issue.

The facts of the instant case, which have been extensively stated, fall into categories (i) and (ii) supra. This is because the Plaintiff’s are indeed asking this court to interprete Article 187(7)(b) of the Constitution in a certain direction such that when enforced it will have the desired results that they wish. But the Defendants contend otherwise. Meaning there are rival contentions.

In clear terms, the Plaintiffs are indeed requesting of this court to interprete the mandate given to the Auditor-General in the discharge of his constitutional duties or obligations. Thus, if this court accedes to that request and interpretation, then it will have to follow it with enforcement which will then lead to the Auditor-General issuing a disallowance and surcharge in all the three scenarios mentioned in Articles 187(7)(b)(i), (ii) and (iii) respectively of the Constitution.

We also observe that, the Plaintiffs, anchored their reliefs basically on the constitutional provisions and where necessary provided flesh by reference to the Audit Service Act, 2000 (Act 584) and Public Financial Management Act, 2016 (Act 921). The Defendants on the other hand have relied basically on the said statutory provisions and argued that this court has no jurisdiction.

We have on our part, considered in detail, the facts of this case which admit of no controversies whatsoever.

We have also considered the law and a plethora of decided cases on the subject, such as the following:-

(1) Republic v Special Tribunal, Ex-parte Akosah [1980] GLR 592 which is the locus classicus on the subject-matter
(2) National Media Commission v Attorney-General [2000] SCGLR 1
(3) Aduamoa II v Twum [2000] SCGLR 165
(4) Tuffuor v Attorney-General [1980] GLR 637 SC
(5) Bimpong Buta v General Legal Council [2003-2004] SCGLR 1200
(6) Republic v High Court (Fast Track Division) Ex-parte CHRAJ, (Richard Anane: Interested party) [2007-2008] SCGLR 213
(7) Osei Boateng v National Media Commission [2012] 2 SCGLR 1038, just to mention a few.

We deem it necessary to refer to the observation by our respected Sister, Adinyira JSC in the case of Okudzeto Ablakwa & Another v Attorney-General & Obetsebi Lamptey [2011] 2 SCGLR 986 wherein she stated as follows:-

Article 2(1) of the 1992 Constitution imposes on the Supreme Court the duty to measure the actions of both the legislature and the executive against the provision of the Constitution. This includes the duty to ensure that no public officer conduct himself in such a manner as to be in clear breach of the provisions of the Constitution. It is by actions of this nature that gives reality to enforcing the constitution by compelling its observance and ensuring probity, accountability and good governance.

The matter was recently put to rest by the unanimous decision of the Supreme Court in the unreported judgment of the Court in Emmanuel Noble Kor v Attorney-General and Another, Suit No. JI/16/2015 dated 10th March 2016 in which it was made explicitly clear as follows:-

It will be seen that article 2 of the Constitution is headed ‘Enforcement of the Constitution’ and the ensuing provisions are meant to attain the enforcement of the Constitution. There is therefore express authority in the Constitution itself for the view that the enforcement jurisdiction of this court is a conspicuously independent item of jurisdiction of this court. Indeed, though it will be erroneous to say that a declaratory action cannot be brought within article 2 towards the enforcement of an ambiguous provision of the Constitution, it appears that while the enforcement purpose of that article is clear on the face of its provisions, its interpretative purpose is comparatively latent.

Based on the above decisions and the principles of law decided therein, we have no doubts whatsoever in our minds that the plaintiffs have properly invoked the original jurisdiction of this court, and this court must therefore give them a hearing in line with the principles of law stated therein.

The objection on grounds of jurisdiction is thus dismissed.

This then requires us to consider the two issues set out in the memorandum of issues.

WHETHER OR NOT THE AUDITOR-GENERAL FULLY DISCHARGES HIS CONSTITUTIONAL OBLIGATION SIMPLY BY AUDITING AND POINTING OUT FINANCIAL IRREGULARITIES IN THE ACCOUNTS OF A PUBLIC ENTITY

The Constitutional and Statutory mandate of the Auditor-General in respect of the public accounts of Ghana as defined in article 187(2) of the Constitution are well stated not only in the Constitution, but also in the Audit Service Act, 2000 (Act 584) and the Public Financial Management Act, 2016 (Act 921) respectively.

For example, the constitutional obligations of the Auditor-General include the following:-

(1) to audit and report on the public accounts of Ghana and of all public offices. – Article 187(2)
(2) to within six months after the end of the financial year prepare a report of his audit and lay same before Parliament drawing attention to any irregularities in the accounts audited and to any other matter which in his opinion ought to be brought to the notice of Parliament reference. – Article 187(5).
(3) to audit any public office upon the request of the President acting with the advice of the council of State reference. – Article 187(8).
(4) to exercise his Disallowance and Surcharge obligations in respect of irregularities he discovers in the performance of his functions under the Constitution or any other law. – Article 187(7)(b).

It is to be noted that, these constitutional obligations even though exist separately, some can only be triggered by the performance of others. For example the Auditor-General must conduct an audit into the public accounts of Ghana before he can prepare a report to Parliament. Similarly, there must also be an audit by the Auditor-General into the public accounts before there can be any Disallowance and or Surcharge.

However, it is possible for the Auditor-General to perform the audit into the public accounts of Ghana, prepare a report and lay same before Parliament without any irregularities detected. But it is not automatic that there must be a Disallowance and Surcharge arising from every such report. These are only triggered when the report discloses irregularities in the public accounts audited.

Thus, the constitutional obligation in Article 187(7) on the Auditor-General to exercise his mandate of Disallowance and Surcharge in the manner stated are only invoked against those persons responsible for incurring the liabilities which have led to the occurrence of the events listed in Articles 187(7)(b)(i), (ii) and (iii) supra of the constitution.

Furthermore, if we consider the statutory interventions in Acts 584 and 921, then it becomes very clear that the Auditor-General’s constitutional mandate in auditing the public accounts of Ghana far exceeds the task of auditing and pointing out the irregularities in the accounts of a public entity.

When one considers in detail, the effect of section 20(2) of Act 584 referred to, elsewhere in this rendition, then it becomes crystal clear that the Auditor-General, quite apart from conducting an audit into the public accounts of Ghana and preparing a report for Parliament and drawing attention to irregularities, and the matters stated therein, must definitely trigger his powers of Disallowance and Surcharge obligations, whenever these irregularities exist.

We are therefore of the considered view that the statement by the learned Counsel for the Defendants that, section 17 of Act 584 only mandates the Auditor-General to issue management letters as indicated in exhibits AG1 to AG4 is untenable.

This is because, a careful reading of section 17 of Act 584 referred to supra, gives very clear indications that the provisions therein stated are to be procedural steps that the Auditor-General is mandated to pursue in his quest to fulfill the Discharge and Surcharge obligations imposed upon him under the Constitution.

What is worthy of note is that, the 4th Republican Constitution has been anchored on the principles of Freedom, Justice, Probity and Accountability and the recognition that the powers of government spring from the sovereign will of the people based on the concept of universal adult suffrage and rooted on the principle of Rule of Law, the protection and preservation of fundamental human rights among others as stated in the preamble to the Constitution.

When we juxtapose these principles against the powers of the Auditor-General in Article 187(7)(b) and Acts 584 and 921 respectively, it becomes very clear that adequate measures have been put in place to afford any person against whom the Attorney-General has exercised his powers of surcharge and disallowance to avail himself of the due processes in the High Court to vindicate himself, whilst at the same time ensuring that the public accounts of the state are duly protected.

That fundamental right in section 17(3)p of Act 584 which enables an aggrieved person against whom a Disallowance and Surcharge had been made by the Auditor-General to within 60 days appeal to the High Court is in itself a recognition of the fact that, failure by an aggrieved person to take those steps can lead to the disallowance and surcharge being enforced without more. This enforcement can lead to the attainment of the principles of probity and accountability enshrined in the Constitution.

We are further emboldened by the views we have expressed in this judgment when we refer to the views of the then Auditor-General in Exhibit OG2, attached to these proceedings which are the proposals of the Auditor-General for amendment of the Constitutional provisions of the office of the Auditor-General.

For example on page 16 of the proposals, under the heading Issues and Comments are the following:-

The provisions of Article 187(7)(a) & (b) should be maintained and enforced.

The independence of the Auditor-General from the direction or control of any person or authority is a key requirement under INTOSAI’s Auditing standards. The office of the Auditor-General has received adverse comments from Development Partners who have invested in the national budget and also from Parliament for not actively introducing measures to implement the provisions on surcharge and disallowance.

From the above, it is clear that the Auditor-General has recognized the need to maintain and enforce the provisions in Article 187(7)(a) & (b) supra and also implement and enforce the provisions on surcharge and disallowance.

There is also a tacit recognition by the Auditor-General that the provisions on disallowance and surcharge must be maintained. The problem if any is the erroneous impression in the mind of the then Auditor-General that the said powers are discretionary in nature and that perhaps that he needed more legislation to carry out this disallowance and surcharge mandate. If this be it, then it is untenable.

The memorandum to the Interpretation Act, 2009 (Act 792) states in part as follows:-

In essence the Constitution must be construed or interpreted in a manner
(a) that promotes the rule of law and the values of good governance,
(b) that advances human rights and fundamental freedoms
that permits the creative development of the provisions of the Constitution and the Laws of Ghana, and
(c) that avoids technicalities which defeat the purpose of the Constitution and of the ordinary law of the land.

The Chambers, 21st Century Dictionary, Revised Edition, defines “disallow” on page 379 as follows:-

verb – to formally refuse to allow or accept something (2) to judge something to be invalid – disallowance – noun.

The same dictionary on page 142 defines “surcharge” as follows:-

an extra charge, often as a penalty for late payment of a bill.

When we consider the meanings ascribed to these words in the context in which they have been used in article 187(7)(b) of the Constitution then there seems to be no doubt whatsoever that, what the words actually mean is that, the Auditor-General will formally refuse to accept or allow any item of expenditure that is contrary to law etc.

Having refused to accept or allow the expenditure as being contrary to law, the Auditor-General now proceeds to impose an extra charge as penalty for the retrieval of the amount or expenditure that he has refused to allow or accept, because it was contrary to law.

Furthermore, Article 34(1) which deals with the Directive Principles of State Policy provide thus:-

The Directive Principles of State Policy contained in this chapter, shall guide all citizens, Parliament, the President, the Judiciary the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking or implementing any policy decisions, for the establishment of a just and free society.

The above provisions are a clear injunction on the Judiciary to bear the above in mind when interpreting the Constitution. There is thus no room for us as a Judiciary to be pedantic in dealing with issues of constitutional interpretation. This is especially so when in Article 37(1) of the Constitution, (which also includes the provisions on the Directive Principles of State Policy). It is directed that, “the state shall endeavour to secure and protect a social order founded on the ideals and principles of freedom, equality, justice, probity and accountability as enshrined in chapter 5 of this Constitution.”

All constitutional interpretations must therefore bear the above provisions in mind. This is especially so when we consider provisions requiring compliance with upholding of the tenets of probity and accountability vis-à-vis the work of the Auditor-General in protecting the public purse for the public good.

On the basis of the above, the nature of the Constitution as the basic law of the land and therefore requiring pride of place has been recognized in Article 11(1) of the Constitution.

At this stage, it is useful to refer and remind ourselves of the fact that the Constitution itself in Article 11(1)(a) has given pride of place to the Constitution as the Grundnorm, that is to say it is at the apex, of the laws of Ghana. This therefore means that the constitutional provisions in Article 187(7)(b) take precedence over any other laws, and must therefore be regarded in that position.

In our opinion therefore, the mandate of the Auditor-General in exercising his constitutional obligations in Article 187(7) of the Constitution does not end simply by the performance of same and issuing a report on the irregularities in the accounts of a public entity, but goes beyond it to include the powers of Disallowance and Surcharge which we will consider next.

WHETHER OR NOT THE AUDITOR-GENERAL HAS AN OBLIGATION TO ENSURE THAT HIS POWERS OF DISALLOWANCE AND SURCHARGE DULY EXERCISED ARE COMPLIED WITH BY PUBLIC ENTITY OR OFFICIALS DIRECTLY AFFECTED BY THE AUDITOR-GENERAL’S EXERCISE OF HIS POWER OF DISALLOWANCE AND DISCHARGE

We have been persuaded by the submissions of both learned counsel for the parties herein that, apart from the constitutional provisions in Article 187(7)(b) supra, which is applicable to the circumstances of this case, the other relevant statutes are sections 17(1) of Act 584 supra and sections 85(1) and 88(1) respectively of the Public Financial Management Act, 2016 (Act 921) which provides as follows:-

85. (1) A Principal Spending Officer shall, on an annual basis, submit the following to the Minister and Auditor-General:
(a) a report on the status of implementation of recommendations made by the Auditor-General in respect of that covered entity; and
(b) a report on the status of implementation of recommendations made by Parliament in respect of that covered entity.
(2) The Attorney-General shall, on an annual basis, submit a report on the status of any action commenced on behalf of the Government to the Minister, Auditor-General and Parliament following findings of the Auditor-General and recommendations of the Public Accounts Committee of Parliament.

88. (1) An Audit Committee shall ensure that the head of a covered entity, to which the Audit Committee relates,
(a) pursues the implementation of any recommendation contained in
(i) an internal audit report;
(ii) Parliament’s decision on the Auditor-General’s report;
(iii) Auditor-General’s Management Letter; and
(iv) the report of an internal monitoring unit in the covered entity concerned particularly, in relation to financial matters raised; and
(b) prepares an annual statement showing the status of implementation of any recommendation contained in
(i) an internal audit report;
(ii) Parliament’s decision on the Auditor-General’s report;
(iii) Auditor-General’s Management letter;
(iv) the report on financial matters raised in an internal monitoring unit of a covered entity; and
(v) any other related directive of Parliament.
(2) An annual statement required under subsection (1) (b) shall
(a) indicate the remedial action taken or proposed to be taken to avoid or minimise the recurrence of an undesirable feature in the accounts and operations of a covered entity;
(b) indicate the period for the completion of the remedial action; and
(c) be endorsed by the relevant sector Minister and forwarded to the Minister, Parliament, Office of the President and the Auditor-General within six months after the end of each financial year.

A perusal of the Constitutional provisions in Article 187(7)(b) and statutory provisions referred to supra, makes it quite clear that the bifurcated or two-pronged enforcement regime argument put up by the Plaintiffs in their statement of case is not only borne out by the relevant provisions referred to supra, but also prudent, designed to the encouragement of probity and accountability in the management of public accounts.

In the first procedure, the public entity against whom the irregularity has been made is required to take steps to collect or retrieve the amount from the person who incurred the liability and has been surcharged.

The second stage is where the person surcharged does not pay the amount and the provisions in section 17 of Act 584 supra are triggered.

As already stated supra, section 17(1) of Act 584 stipulates that it is to the head of the public entity that the Auditor-General shall specify the requirement to collect any amount due from the person on whom a surcharge or disallowance has been made and the reasons therein contained.

As stated supra, the roadmap that is envisaged by the section 17(1) provision of Act 584 has been indicated. This roadmap has recently been given a further boost by the enactment of the High Court (Civil Procedure) (Amendment) No. 2 Rules, 2016 (C. I. 102) which are Rules of procedure enacted by the Rules of Court Committee to further amend the High Court (Civil Procedure) Rules, 2004 (C. I. 47) by the insertion after Order 54 of the following new Order on “Disallowance and Surcharge Appeals).” The enactment of C. I. 102 makes it quite certain that the powers of the Auditor-General under Article 187(7) of the Constitution are to retrieve from persons who have caused loss of public funds in their management of same which is contrary to law. The law speaks for itself and there can be no turning back on this.

However, where the person surcharged files an appeal, Order 54A rule 2(7) and (8) of C. I. 47 constitutes the Auditor-General into the respondent to the appeal, as follows:-

For the purposes of the appeal, the Auditor-General is the respondent.

This makes it quite apparent that, following the Auditor-General’s exercise of the Disallowance and Surcharge, the bifurcated approach is triggered. It should also be noted that, there can be no such bifurcated approach to retrieve the sums of money so specified unless and until there has been a disallowance and surcharge.

Furthermore, section 88(1) and (2) of Act 921 puts the matter beyond doubt by stipulating the various steps that the head of the entity covered is expected to take in order to ensure the implementation of the Auditor-General’s recommendations as contained in his management reports and final report on financial matters.

Section 85(1)(a) and (b) on the other hand directs the Principal spending officer to submit on an annual basis, the following:-

(1) A report on the status of the implementation of the Auditor-General’s report.
(2) A report on the status of the implementation of the report of the Auditor-General made by Parliament in respect of the entity covered.

In our considered opinion, in interpreting the constitutional provisions referred to in Article 187(7)(b)(i), (ii) and (iii) supra, we also have a duty to look at all the subordinate legislations which have been enacted to practicalise the harmonious effect of the constitutional provisions. These include the following:-

(1) Audit Service Act, 2000 (Act 584)
(2) Audit Service Regulations, 2011 (C.I. 70)
(3) Public Financial Management Act, 2016 (Act 921)
(4) High Court (Civil Procedure) (Amendment) No. 2 Rules, 2016 (C.I. 102)

Perusal of the relevant sections of Act 584 and 921 supra, and the overriding philosophical underpinnings of the 4th Republican Constitution in its preamble, make it quite clear that the said constitutional provision on the powers of Disallowance and Surcharge of the Attorney-General must be enforced.

We reckon the fact that, the stipulations in articles 187(2), (3), (4), (5) and (6) of the Constitution has the operative word “shall”, and this is mandatory.

However, when it comes to the vexed issue of the Disallowance and Surcharge, provisions as used in Article 187(7)(b) the operative word is “may”.

Taking a cue from the importance of the work that is attached to the office of the Auditor-General and the fact that it is the custodian and protector of the public purse, any derogation of the functions therein specified will defeat the lofty aims and objectives stated in the Preamble to the Constitution and the role and objectives of the work of the Auditor-General.

It is to be noted that, the general rules for construction or interpretation that we have become so familiar with were formulated by Judges and crystalised into rules and principles of interpretation.

See for example the mischief rule which was enunciated in Heydon’s case [1584] 3 Co. Rep 7a76 E.R. 637, the Literal Rule which was propounded in the Sussex Peerage case [1844] 11 Co. & E 85, 8 E.R. 1034, the Golden Rule enunciated in the Grey v Pearson [1857] 6. H.L.C 61, 10 E.R. 1216.

The courts in the commonwealth then moved to the now in vogue Purposive Approach. Judges in Ghana and elsewhere in the Commonwealth, have where it is considered appropriate abandoned the strict constructionist view of interpretation in favour of the purposive approach to interpretation which per Atuguba JSC in his opinion in Re Presidential Election Petition, Akufo-Addo & 2 others (No. 4) v Mahama & 2 Others (No. 4) 2013 SCGLR (Special Edition) 73 at page 111 where he stated that

the purposive approach has been enthroned in the Supreme Court as the dominant rule for the construction of the Constitution.

See also the Supreme Court case of Agyei Twum v Attorney-General & Akwetey [2005-2006] SCGLR 732 at 757 where the court adopted the purposive approach to interpretation of the Constitution.

See also Ransford France No. 3 v Electoral Commission & Attorney-General [2012] 1 SCGLR 705 at 718 where the court rejected a literal interpretation that was urged upon it in favour of a purposive approach claiming that a literal interpretation would lead to grave injustice.

It is in this respect that we feel the entire provisions of Articles 187 to 189 on the Auditor-General and the Audit Service must be read as a whole. If that is done, then the intended effect of the work of the Auditor-General which is to ensure that public funds or accounts are handled by safe hands, and that whenever losses of any kind contemplated in Article 187(7)(b) occur, those responsible are identified and duly punished. This must be measured against the background of the fact that the practicalisation of the work of the Auditor-General will ensure that there is probity and accountability in the management of state funds. This will no doubt prevent the wanton dissipation of state resources that are meant for specific projects and activities under the Government’s fiscal policies.

This therefore means that there should be no loss to the state or public in the management of state resources.

At this moment, we think judicial notice can be taken of the fact that corruption, abuse of position and embezzlement of public funds among others has become the bane of our governance structures. Reference is made to the various Auditor-General’s Reports attached to these proceedings. It is our opinion that, notice must be taken of the rampant carelessness that is often times employed by those in charge of public funds in most entities.

We believe that the time has come when it is necessary to strengthen the relevant constitutional bodies set up under the Constitution such as the Auditor-General to protect the public purse from persons who intend to embark upon personal economic recovery programmes with the public funds.

We are also of the view that, the Auditor-General is expected to name the persons who commit irregularities etc, under Article 187(7)(b) and section 17 of Act 584 respectively, recover the amounts from them and thereafter those persons be made to face appropriate punishment. That should be the way forward.

We therefore have a duty to ensure that the reports of the Auditor-General into the public accounts of Ghana wherein findings are made in respect of persons who act in authorizing expenditure contrary to law, or have withheld sums of money from the public account or by whose negligence or misconduct losses or deficiencies to public funds has resulted, must be treated in accordance with the Constitution and laws of Ghana, and have an immediate impact.

“To be or not to be, that is the question,” reference Shakespeare in Hamlet, Prince of Denmark.

Should this court hold and rule that, because the word “may” has been used in Article 187(7)(b) of the Constitution 1992, the Auditor-General’s powers of surcharge and disallowance are not mandatory and can be exercised at the whims and caprices of the Auditor-General? Are these constitutional obligations discretionary then?

We have been privileged to have been given access to the training materials used by the Auditor-General on March 23rd 2006 in a presentation by the then Auditor-General Mr. Edward Dua Agyemang, at a seminar on public accounts management, among others, on the topic “Public Expenditure Monitoring and Tracking – The Role of the Auditor-General” attached to these proceedings as Exhibit OG1.

We find these materials quite appropriate, and revealing. Since they also conflict with the stance of the Defendants in these proceedings, we deem it appropriate to refer to some of them as per Exhibit OG1.

Powers of surcharge and approval of systems

In the course of monitoring public expenditure, the Auditor-General has been given a unique power of surcharge by the Constitution and the Audit Service Act. Article 187(7)(b) of the Constitution requires that the Auditor-General may disallow any item of expenditure, which is contrary to law and surcharge.

Any person against whom a surcharge has been raised by the Auditor-General has the power of appeal against the surcharge in the High Court.

So far this power has not been invoked against public officials because they are given the opportunity to rectify financial lapses resulting in delayed accountability.

However, because of the escalation in cash irregularities by 99.5% in 2004 involving presented payments vouchers and unacquitted payments, the Auditor-General will invoke his powers of surcharge against responsible officers for such serious compliance violations in 2006. This robust sanction will hasten and deepen accountability in the country.

The combined effect of the above is that, as at March 2006, the office of the Auditor-General recognized the fact that the way to protect the public funds of Ghana, and prevent looting of the public purse, avoid corruption and dictatorship is to practicalise the constitutional provisions on the powers of surcharge and disallowance, granted the Auditor-General under the Constitution 1992.

However, this resolve to exercise this power from 2006 has not only been breached, but there has been stoic silence from the office of the Auditor-General to date.

We do not substitute the views of the Auditor-General in those presentations for our constitutional mandate in interpreting and enforcing the constitutional provisions in Article 187(7)(b) as we are required to do. We have only done the references in order to let it be known that, this was the thinking of the Auditor-General in 2006 on these vexed issues.

We also wish to refer to the locus classicus case of Tuffour v Attorney-General [1980] GLR 637. Even though the facts of this case are well known, suffice it to be stated briefly as follows:-

The Plaintiff therein, filed a writ against the Speaker and Attorney General under Section 3 of the first Schedule to the Constitution 1979 for a declaration as follows:-

(1) On the coming into force of the Constitution the Hon. Mr. Justice Apaloo was deemed to have been appointed as Chief Justice and also as President and member of the Supreme Court.
(2) The application of the procedure in article 127(1) to him and his purported vetting and rejection by Parliament were in contravention of the Constitution.
(3) That Justice Apaloo remained Chief Justice and President of the Supreme Court.

Sowah JSC (as he then was) in delivering the judgment of the court, made some pronounced and notable statements regarding the nature of a written constitution such as this 4th Republican Constitution and how it also mirrors the history of the people of Ghana. Out of abundance of caution, we wish to refer to the relevant portions of that judgment.

This has been done with a view to illustrating how Constitutional provisions can be interpreted to achieve the special architecture designed to ensure a proper equilibrium in the governance structure aimed at probity, accountability and transparency. Without these values, all is vanity in our quest for a control mechanism of our public funds or accounts. He states:-

A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people’s search for progress. It contains within it their aspirations and their hopes for a better and fuller life.

The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountain-head for the authority which each of the three arms of government possesses and exercises. It is a source of strength. It is a source of power. The executive, the legislature and the judiciary are created by the Constitution. Their authority is derived from the Constitution. Their sustenance is derived from the Constitution. Its methods of alteration are specified. In our peculiar circumstances, these methods require the involvement of the whole body politic of Ghana. Its language, therefore, must be considered as if it were a living organism capable of growth and development. Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time. And so we must take cognisance of the age-old fundamental principle of constitutional construction which gives effect to the intent of the framers of this organic law. Every word has an effect. Every part must be given effect. Perhaps it would not be out of place to remember the injunction of St. Paul contained in his First Epistle to the Corinthians, Chapter 12, verses 14-20 (King James Version):

‘For the body is not one member, but many. If the foot shall say, Because I am not the hand, I am not of the body; is it therefore not of the body? And if the ear shall say, Because I am not the eye, I am not of the body; is it therefore not of the body? If the whole body were an eye, where were the hearing ? If the whole were hearing, where were the smelling…? But now are they many members, yet but one body.’

And so a construction should be avoided which leads to absurdity. And when a particular interpretation leads to two, shall we say “inconsistent” results, the spirit of the Constitution would demand that the more reasonable of the two should be adhered to. We must have recourse to the Constitution as a whole.

When we put all the learning in the above quotation together, the “may” in Article 187(7)(b) of the Constitution 1992, becomes a mandatory may, and no longer permissive. This is to afford us the opportunity to enforce the provisions of Article 187(7)(b) which will deepen probity and accountability.

It is to be noted that the times we are in as a nation require that we deepen and institutionalize principles which will uphold proper and decent management and protection of public accounts. The tendency where public accounts are considered as a fattened cow to be milked by all and sundry must stop. Our laws on financial management must therefore be made to work to prevent absurdity in our enforcement regimes of same.

We reckon that, it is in the pursuance of these noble objectives that the Rules of Court Committee has enacted C. I. 70 and also C.I. 102 both referred to supra.

The rationale for the above is to give teeth to the constitutional and statutory mandate of the Auditor-General’s powers on Disallowance and Surcharge to bite.

In their respective submissions, learned counsel have variously referred to and relied on Audit observations and management letters.

In essence, whilst the Defendants concede that the Auditor-General has this constitutional power or mandate of surcharge and disallowance, they argue that, the duty of the Auditor-General ends with the submission of his report. They contend further that, action on the Auditor-General’s reports are to be implemented by other statutory bodies. These are the Audit Committee’s established under the Public Financial Management Act, 2016 (Act 921), section 85 (1) of which deals with the report and recommendations of the Auditor-General by the principal spending officer of that entity in relation to his dealings with the Auditor-General and Parliament respectively.

On the other hand, sections 86 to 88 of Act 921 deals with the Establishment of Audit Committees by various entities, the composition of the membership of such committee’s and the functions of the said Audit Committees respectively.

Section 88(1) of Act 921 has already been referred to supra. The crux of the provisions therein contained indicate that, in all cases;
(1) The Audit Committees are to pursue the implementation of any recommendation contained inter alia, in the Auditor-Generals report, as decided upon by Parliament, and the Auditor-General’s management letter and
(2) To prepare an annual statement showing the status of implementation of any recommendation contained in the Auditor-General’s report on
(a) Parliament’s decision on the Auditor-General’s report and
(b) Auditor-General’s management letter, among others.

What is to be noted is that, all the above requirements and procedures are statutory, based on Acts 584 and 921 respectively as well as the Audit Service Regulations, 2011 respectively. However, the Auditor-General’s powers of surcharge and disallowance are constitutional and therefore have to be on a higher pedestal and given pride of place.

When we consider the combined effect of Regulations 34, 35, and 57 respectively of the Audit Service Regulations, 2011 (C I. 70), which deals with Audit observations and reporting, consequences of not responding to an audit observation and issue of management letters after completion of an audit assignment respectively, it becomes very clear that these roles and functions are different in scope and magnitude from the Auditor-General’s report envisaged and stipulated in Articles 187(2) and (5) respectively of the constitution.

Whilst management letters are issued by Branch and sectoral heads within two weeks of an audit assignment, containing their findings, recommendations and conclusions of their assignment to the management of the entity and copied to the officials and the organisations, that of the Auditor-General is wider in scope as it is submitted to Parliament and has far reaching effects and consequences as is stipulated in Articles 187(7)(b) of the Constitution.

Audit observations per Regulation 34(1) of C.I. 70 on the other hand are formal audit observations issued at an audit location in the course of the audit. In this respect, the audit team is enjoined under Regulation 34(2)(a) & (b) of C.I. 70 to take steps to discuss with the audited organization the findings and recommendations arising from the audit and also obtain written responses from the audited organization. Thus these activities occur at a lower level and earlier stage of the process which culminated in the Auditor-General’s report submitted to Parliament.

It is thus therefore quite clear that Audit observations, and Management letters are different in context, scope and magnitude from the Auditor-Generals’ report as stipulated in Article 187 referred to supra.

From the above discussions, it is quite apparent that the Auditor-General has an obligation to ensure that his powers of disallowance and surcharge duly exercised by him under Article 187(7)(b) of the Constitution are complied with by the public entity or officials directly affected by the exercise of his powers of surcharge and disallowance.

CONCLUSION

In the premises, it is our considered view that using the principles of interpretation so eloquently and powerfully explained in the decision in the case of Tuffour v Attorney-General, supra and the purposive approach to interpretation generally, this court will interprete Article 187(7)(b) as having a mandatory effect in so far as the Auditor-General’s report is final.

In the premises, the Plaintiffs succeed in their claims against the Defendants in respect of reliefs 1, 2, and 3 as follows:-

(1) That upon a true and proper interpretation of Article 187(7)(b)(i) of the Constitution, the Auditor-General is bound to issue a disallowance or surcharge where there has been any item of expenditure on behalf of the Government that is contrary to law.
(2) That upon a true and proper interpretation of Article 187(7)(b)(ii) of the Constitution, the Auditor-General is bound to issue a disallowance and surcharge where any person fails to bring any sum into the Government’s account.
(3) That upon a true and proper interpretation of Article 187(7)(b)(iii) of the Constitution, the Auditor-General is bound to issue a disallowance and surcharge where the Government suffers or incurs a loss or deficiency through the negligence or misconduct of any person.

Reliefs 4 and 5 are granted in their entirety against the Defendants.

CONSEQUENTIAL ORDERS

As a sequel to our judgment just delivered, we further direct that, henceforth, the Auditor-General shall take steps to recover the amount unlawfully expended from the person or persons who incurred and or authorised the disallowed expenditure.

Secondly, the Auditor-General shall also take steps to recover the amount from the person or persons by whom the amount ought to have been brought into account.

Thirdly, the Auditor-General shall also take steps to recover the value of the loss or deficiency from the person or persons by whose negligence or misconduct the losses or deficiencies were incurred, (whether or not the person is a public servant).

Finally, the Attorney-General is hereby ordered to take all necessary steps to enforce the decisions or steps taken by the Auditor-General supra to ensure compliance including in some cases criminal prosecutions.

We have had to issue out the above consequential orders even though we are happily aware that the current Auditor-General Mr. Daniel Yao Domelevo has taken steps to train his staff under C. I. 102 to prepare them adequately for the hearings in respect of the surcharge and disallowance appeals anticipated under article 187 (7) of the Constitution.

EPILOGUE

Quoting again from the presentation by the then Auditor-General, Mr. Edward Dua Agyemang, attached to these proceedings by the Plaintiffs as exhibit OG1, which we have already referred to supra, the Auditor-General concluded that presentation as follows:-

Let me conclude by saying that whenever people get a choice between privacy and accountability, they tend to choose privacy for themselves and accountability for everyone else. But accountability and good governance are inextricably interrelated with each other. Take away accountability from good governance and you will be left with dictatorship and corruption.

For accountability to thrive there is the need to have effective monitoring and tracking of public expenditure by the Auditor-General. The success in this endeavor depends on strong political will to adequately resource the Auditor-General to be able to hire and maintain properly trained staff and professionals; acquire the needed equipment and other resources.

The growing interest of the public in the work of the Auditor-General has demonstrated the important contribution the Auditor-General makes in helping our nation spend wisely through expenditure surveillance. The Auditor-General provides assurances to the people of Ghana through Parliament that public money is spent properly and that there is accountability.

From the above, what is apparent is that, there is an urgent need to adequately resource not only the office of the Auditor-General, but also that of the other constitutional bodies like the Judiciary, CHRAJ and Attorney-General, just to mention a few, who are the front runners in our fight against corruption. This will ensure that the impact of these constitutional bodies in our quest to ensure probity and accountability thereby enhancing proper management and control of public funds is put on a higher pedestal.

We believe that as a nation, we have reached a critical stage in our governance systems where we must not shy away from spending wisely in order to superintend the public purse. This is the only sure way to ensure that the good governance principles enshrined in the Constitution such as Article 187(7)(b) are not lost.

There is an old adage which states as follows “penny wise, pound foolish”. We therefore must adequately fund these constitutional bodies including the Auditor-General to ensure maximum protection of the public funds.

Save as is stated supra, the Plaintiffs succeed substantially on their claims against the Defendants.

V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)

S. A. B. AKUFFO (MS)
(JUSTICE OF THE SUPREME COURT)

S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)

ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)

P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)

N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)

A. A. BENIN
(JUSTICE OF THE SUPREME COURT)

SIX (6) THINGS I WISH I KNEW [MORE ABOUT] BEFORE TURNING 30

Tuesday, June 16th, 2015

SIX (6) THINGS I WISH I KNEW [MORE ABOUT] BEFORE TURNING 30

(Presentation delivered to the 1st Eagles Conference for Men, held/organised by Joyful Way Incorporated on 30th May 2015)

Thank you for inviting me to speak at this maiden Eagles Conference, organised by the group that I absolutely love with all that I am and have within me, Joyful Way, the last standing epitome of true music evangelism.

It is certainly by your design that my wife spoke, last year, at the maiden Arete Conference that you organised for young women. I understand that it was pretty no-holds-barred, take-no-prisoner session. I haven’t summoned sufficient courage to listen to the recording, and I will NOT encourage you to do that! Trust me, I know what I am talking about.

Today, I am privileged to be speaking after two truly great men. First, is the current President of Joyful Way, Michael Charway, who spoke on “How A Young Man Can Keep His Way Pure,” and then my own friend and brother Albert Ocran who I have known for 40 out of my 47 years on earth, who spoke to you on “How To Cultivate Multiple Income Streams.” You could not have chosen better men to speak on these topics, as the messages they delivered, I know, reflect their very lives. The messenger is the best message. I can only hope and pray that at the end of my presentation, I would be considered worthy of being associated with the path that these men have so skillfully blazed here to day.

My presentation is in two parts. The first part is the introduction to the topic. The second part is a list, just a list of 6 things I which I had known (better) some 17 years ago, when I turned 30.

INTRODUCTION

What is it about the age 30, and why is it significant? Isn’t age just a number? Or is it because the number looks and sounds nice?

Since this Conference is organised by a Christian organisation, this presentation is anchored and rooted in your source

Let’s go the the Good Book, Book of Books, the Ancient Script, penned by human hands, yet inspired by the Spirit of the life-creating, life-changing and life-sustaining Force called “God”. I have found in that book, 6 significant things that happened to 6 significant people at the age 30.

1. Joseph was 30 when he was appointed to put in place in Egypt, an economic policy that would mark that country as a world giant and ultimately a super power. (Gen 41:46). In 30 years, God has raised him from being a spoilt son of a rich man, a sissy and dreamer, thrust into management as a teen with no experience and not even the ability to interpret his own dreams, God rescued him
* from Papa’s loving and overbearing Protection,
* from the Pit of dashed hope and Despair,
* from Potiphar’s House of Temptation and Seduction,
* from Prison, living on others’ dreams, a place Unjust and Unfair,
* to the Palace and Power and Position.

2. In ancient Israel, Priests were officially commissioned into service at the age of 30 (Num 4:3). Thus although they had been born in the tribe of Levi and were destined to become priest, they required 3 decades of training to assume that high office for 2 decades. They had to retire at 50. Note however that that age was subsequently reduced to 25 (Num 4:24-25) and to to 20 in the time of David (I Ch 23:24-27, 2 Ch 31:17), but the retirement age appears to have been kept at 50.

3. David became King at age 30, and he ruled for 40 years (2 Sam 5:4). Doing the math, he could was 18- 20 when he killed Goliath. That is confirmed by Num 1:18-45 where the age of being “numbered” for military service was 20.

4. Ezekiel received his prophetic and unmatched vision-seeing ministry when he was 30 (Ez 1:1). He remembered the actual date of his 30th year (4 months and 5 days) and exactly where he was (by river Chebar) when “the heavens were opened and I saw visions of God.”

5. The Lord Christ Himself started his work at age 30. Lk 3:23 – “And Jesus himself began to be about thirty years of age, being (as was supposed) the son of Joseph, which was the son of Heli.” God HIMSELF, needed 3 decades of preparation for what was effectively 3 years of ministry!!

6. John the Baptist must have started his work at age 30. How do we know? He was only 6 months older than the Lord Christ. Luke 1:26 says that 6 months after angel Gabriel returned to heaven from the “divine impregnation” mission effected on the old and barren Elisabeth in Judaea, the same angel was sent on another of such missions, this time to a city of Galilee called Nazareth and this time to a virgin! In v.36, Gabriel confidently informs Mary that her cousin Elisabeth is 6 months pregnant already, and that she is about to go through the same miraculous procedure, and that with God, nothing was impossible. And in fact, it was only upon this testimony that Mary believed and said “Behold I am the handmaid of the Lord, be it unto me according to thy word.”

30 is therefore significant as the age of maturity. Life may “begin” at 40, but we step into maturity 10 years before beginning life. In other words, we mature before we live.

Our topic today is therefore asking about what we should have known before maturity, before becoming of age. In other words, what should I have known when I was still YOUTH?

The 6 ‘Paulian’ Standards

Paul says to a young Timothy “Let no man DESPISE thy youth; BUT be thou an EXAMPLE of the believer, in WORD, in CONVERSATION, in CHARITY, in SPIRIT, in FAITH, in PURITY.” (1 TIM 4:12)

“LET NO MAN” means do not allow any person, do not give grounds, room, reason, justification or basis.

To “LET” means to allow, permit, give permission to, give leave to, authorize, sanction, grant, grant the right to, warrant, license, empower, enable or entitle. Used with the negative adverb,”no,” gives it an opposite meaning, force and effect: “Do Not!”

It means that you are the only person who can allow the time of your youth to be despised by men. In other words, the time of your youth will be judged, weighed at some point in your life. Did it build you up for anything? In other words, even when you are no longer youth, the things you do will let others judge the kind of youth you were or upbringing you received.

You have heard it said, “ofri fie,” (he/she comes from a home); or “onyaa nteteɛ pa,” (he/she is of a good upbringing); or “ye tetee no, y’an nyɛn no sɛ akokɔ” (he/she was carefully raised, not simply kept like a chicken); or “na opanin nni ne fie?” (was there no elder person in his/her house/family?)

It may be true that you should not consider, too seriously, what others think about you. But Paul something different here. He says that what others think about you (especially during your time as youth), may be influenced by who you are, what you do and what you have become. In short, WHAT FOUNDATION DID YOU RECEIVE AS YOUTH? In other words, WHAT SHOULD I HAVE KNOWN AND DONE WHEN I WAS STILL YOUTH, I.E. BEFORE I BECAME AN ADULT?

Speaking of Foundations, the Lord Christ told the parable of Foundations. According to Matthew the Jewish Zealot, the story was very simple, and indeed simplistic. The wiseman built on a rock and the foolish man build it sand. When the tempests came, the building of the wise prevailed, while that of the foolish was torn down “and great was the fall.” (Mt 7:24-27)

Luke, the Doctor and intellectual tells the same parable, with a deeper insight. He says that the first man did not simply find a rock and build a house on it. Luke says the man “digged deep and laid the foundation on a rock.” The other man “without foundation, built an house upon the earth.” (Lk 6:47-49)

I side with the intellectual version or recount. Building a solid foundation for your future involves DIGGING DEEP to find A ROCK, and then LAYING THE FOUNDATION UPON THAT ROCK. Digging deep requires hard work, sacrifice, pain and endurance, and DEFERRED GRATIFICATION. You will see your friends just settle on any patch of earth, but you want more, you want better. You are unwilling unable and unprepared to compromise on your foundation. You are prepared to pay the price, take the pain today, deny yourself of today’s pleasure in the knowledge that when you finally HIT THAT ROCK, only God can stop you. Even the sky will not be your limit.

And so in Lam 3:27, the weeping prophet takes a break from his ‘jeremiad’ and affirms that “It is GOOD for a man that he bear the yoke in his youth.” That is where and when you pay the price, in your YOUTH.

Wise Solomon tells us in Eccl 12:1 that you should remember the Creator “in the days of your youth.” Because “evil days and years” will come, those last days when you have no pleasure in even continuing to live.

Thus any “man” will only have the ability to DESPISE your youth, if you LET him do so. The NIV says “look down on you.” NLT says “think less of you.” Another version says “thing slightingly of you.”

DESPISE itself means to “feel contempt or a deep repugnance for.”

It is synonymous with detest, hate, loathe, abhor, regard with contempt, feel contempt for, shrink from, be repelled by, not be able to bear/stand/stomach, find intolerable, deplore, dislike.

Your youth therefore provides the foundation of what you will be or become in adulthood. If you don’t build the right foundation, you allow or permit others to be repelled by what you become, because you did not get or attain the proper foundation.

BUT: Paul uses this conjunction in its natural meaning, used to introduce a phrase or clause contrasting with what has already been mentioned. It is synonymous with “yet,” nevertheless,” “nonetheless,” “however,” “despite that,” and “in spite of that.” eg “he stumbled but didn’t fall.”

Thus Paul is saying that the opposite or contrast to your youth being despised, is you attaining the 6 standards that he lays down or sets up after the use of the ‘disjunctive conjunction’ BUT. In other words, if you do not attain these standards YOU will LET others despise your youth.

And so my father’s people the Borbor Mfanste would call you “aambobra sansanyi,” a simile that compares the one with no achievement with the duiker bird.

The song “sansa aboa, mennyi beebi a mowu ma da” speaks of the wondering, restless soul of the homeless, jobless, lazy loafer of a duiker, whose only pleasure is feeding and feasting on hapless little chicks; hence the song “sansa akroma, ne na ewu o, ɔkyeke nkokɔ mba, ɔse ɔnkɛyɛ edwuma. w’akyinkyin, ekyinkin, ekyinkyin…”

Thus you are the only person who can invite despising towards your youth. NO ONE CAN LOOK DOWN ON SOMETHING THAT IS GREATER THAN HIM.

Back to Paul and his sometimes somewhat cryptic writing style, after setting up the PRE-TEXT in just 3 words, he then identifies 6 critical areas where youth must excel, so as not to attract societal opprobrium. But before then, the provides the CONTEXT, saying that you just must not be show them, you must be an EXAMPLE. A mere pass mark in a thing isn’t an example.

An example is “a thing characteristic of its kind or illustrating a general rule.” It is “a person or thing regarded in terms of their fitness to be imitated.” And so here, Paul’s context speaks to, not mere participants, but to that person who can truly and properly be regarded as a specimen, exemplification, representative case, a case in point, an illustration, a precedent, guide, model, pattern, blueprint, template, paradigm, the ideal, THE STANDARD.

This is what informs my personal mantras: If others sit, STAMD. If others stand, STAND OUT. If others stand out, be OUTSTANDING. If others are outstanding, be THE STANDARD.

And so in which areas of life are you to be THE STANDARD that Paul speaks about?

1. SPEECH
In word, in what you say. If ‘the Word WAS God’, then the message and the messenger are one! You must be what you say.

2. CONDUCT
– The way you live
– Way of life
– Manner of life
– Conversation
– Behaviour
– Deportment/Comportment

3. CHARITY
– Love. A verb. A doing word. It is when it is done that it becomes a noun.
Are you a hateful and spiteful person, or are you a loving and considerate person?

4. SPIRIT
This attribute appears in only the King James Version. It could refer to how yielded you are to the Holy Spirit in all of your life and conduct. But it could also mean the manner and disposition in which you do all things, i.e. your human spirit.

5. FAITH
Actually faithfulness. Are you dependable? Are you loyal? Do you have constancy, trueness, true-heartednes, dedication, and commitment? Can I bet my life on you? Or are you the one that we can bet and count on to fail.

6. PURITY
– Chastity (Here, I borrow from the wise words of superior court judges when they write a concurring opinion. In a situation like this, they would have said something like this: :”I have had the privilege of seeing and reading aforehand, the erudite opinion and presentation of your President, Michael Charway. I completely and wholeheartedly concur with what he has had to say, and I have nothing useful to add.”)

But the key thing about these STANDARDS is that there must be a balance. A false balance is an abomination, the Script says. You must be an EXAMPLE in each of these 6 areas, in your youth. If you fail at any in your youth, you weaken your foundation for adulthood, and you invite others to despise your youth, either in the time of your youth or even when you are an adult.

Thus at the end of considering these, may I suggest to you that these are not 6 separate and distinct standards, but altogether, they form ONE STANDARD. There may be 6 components of the whole, but we are required to be an “EXAMPLE”, one example or all 6, rolled into one. If we slack or fall short in even one, we have failed in all. Then we invite the despising that Paul spoke to Timothy about.

May the Lord forbid that your children will one day curse the day that you were born.

The ‘Youthful’ Christ

But we serve a Christ who retains his youth. When God the Father invites God the Son in Ps 110:1 to sit at His right hand “until I make thine enemies thy footstool”, the Father assures the son in v.3 that “Thy people shall be willing in the day of thy power in the beauties of holiness from the womb of the morning: THOU HAST THE DEW OF THY YOUTH.”

That is what must have inspired the songwriter to write “let the Dew of Heaven bring us a refreshing….”

Youthfulness is supposed as be as fresh and as nourishing as the dew, pure and beautiful, born from the womb of morning. That is why the same Psalmist penned that “Weeping may endure for a night, but joy comes in the morning.” And surely, this is what inspired me to write in my song “Me Twɛn Yehowa” that “Nti sɛ nusuo bɛsoɛ me anadwo a, Nanso ade kyeɛ ne anigye n’ɛnam…”

Alas, the Dew of Heaven is a person, the Lord Christ. He, who has retained the dew of his Youth, assures us in Ps. 103 that if we live a life that blesses the Lord, he will (1) forgive iniquities, (2) heal diseases, (3) redeem from destruction, (5) crown with lovingkindness and tender mercies, and (5) satisfy our mouths with good things. The sum total of these blessings is that “so that your youth is renewed like that of the eagle”.

No one knows how long eagles live. But some eagles in captivity have been known to live for over 100 years. This is because every year, eagles go through a natural process called “moulting” when they cast off old feathers and receive new ones, which come with renewed strength and energy to soar and reach heights that no other creature can reach with natural strength.

May our youth be renewed each morning by the Dew of Heaven. May the weepings of the ‘night’ disappear when morning breaks. May we gather the strength to tap into the Dew of Heaven so that we remain fresh each day. May we moult like the eagle so that we can soar the heights. May our feet become like hinds’ feet so that we can capture our heights.

My List of Six

And so all of that I have said before, is my introduction to the list of six (6) things that I wish I knew [more about] before turning 30, and I simply want to invite you, in the light of what we have shared before to think and meditate on these, as I come to a close.

1. Me
2. Life
3. Work
4. Friendship
5. Marriage
6. Wisdom

Pr. 30:24-28 Roll Cal of The Little but Exceedingly Wise
* Ants: weak – prepare meat in the summer
* Rock Badgers: feeble – but has homes in the rocks
* Locusts: no king – but go forth in formations that can make any army jealous
* Spiders: can be held in the hands – but the spider and its web can found in the palace

Sapientia et Doctrina Stabilitas: “Wisdom and Knowledge Shall be the Stability of Thy Times” – Isaiah 33:6 and the motto of the second university that I attended, Queen’s University. Wisdom alone isn’t enough. Knowledge alone isn’t enough. It is wisdom PLUS knowledge that provide stability in all times.

In sum, I wish I knew THEN, what I know NOW, especially that “You will have to keep your mouth open for a very long time, before a roasted partridge flies into it.”

A Stroll in the Park on Republic Day! – REJOINDER

Saturday, July 5th, 2014

[Edited version published in the July 7 2014 edition of the Daily Graphic newspaper at page 42]

The Editor

Daily Graphic newspaper

Accra

Dear Sir:

I read with some amusement, the Opinion of my friend and senior Mfantsipim old boy, Colin Essamuah in his Abura Epistle column, and titled ‘A Stroll in the Park on Republic Day!’ I could not help but notice that although the Opinion was published in the July 4 2014 edition of the Daily Graphic, the page on which the Opinion is published bore the date “June 4”! The printer’s devil has a cruel sense of humour!

I participated in, and was very vocal at, what Mr. Essamuah derisorily called “A Stroll in the Park,” a particularly remarkable description of an event that involved braving a heavy rainfall, facing police blockades and risking arrests.

Middle Class?
Who cares? Tags don’t matter, and Mr. Essamuah knows that more than I do. I recall (faintly) that many years ago when his membership of the New Patriotic Party was challenged on the fatuous ground that he didn’t have a party card, he famously and rightly retorted that the NPP was not the Communist Party for which a party card was a be-all-and-end-all, or words to that effect. I am a Ghanaian. That is all that matters. Until July 1 2014, I had never participated in any demonstration. But that morning, I looked at my circumstances and that of the country, and concluded that the 4-year wait to “speak” only through a vote, is cowardice. The constitutionally guaranteed democratic space permits us to continuously give flesh and voice to what we think and feel about how this country is ruled.

Just like Mr. Essamuah, I had public secondary and university education in Ghana. That meant that both he and I, enjoyed government subsidies funded by the sacrifices of the Ghanaians, many of whom, and whose children, did not have the same opportunities. We owe to them what we have become, at least in part. I don’t know which class I belong to; I don’t care. The privilege of education imposes a duty upon me to fully occupy my democratic space when I see or feel that things are going off beam.

Have Things Gone Off Beam?
Of course they have. Mr. Essamuah doesn’t deny that. He only wants us to remain incurable optimists. But Electricity. Water. Fuel. Roads. Education. Basic needs. The lack of them. Under my ‘social contract’ with the government, I work (or starve), pay taxes and obey the law (or go to jail). The government has to provide all of the above, and more. But name it, and the government is unable to provide it; yet it gets antsy and the kittens when we demand that it should fulfil its side of the bargain?

Yes, for me, one other immediate cause was BRAZIL! Mr. Essamuah is right and wrong. It was not the elimination of the Black Stars (I didn’t think that they would get far anyway), but the embarrassment caused by that “money-on-plane” saga. This is against the background of our government and central bank restricting access to our legitimately acquired foreign currency in the banks. Fair, that’s the law. We live with it. Then our government (with our central bank’s approval or connivance), turns around, puts millions of foreign currency on our presidential jet and flies it into Brazil to live TV coverage and soap-opera rivaling ‘bling,’ exposing us to worldwide derision. A twitter handle purporting to be that of Steven Gerrard, England and Liverpool captain, cryptically said: “Pride and passion with commitment can’t be bought with a private jet carrying $3m.” And as if to prove him right, within days, we, who showed such sickening opulence in Brazil, announced that we are going to borrow foreign money to provide basic needs, such as sanitary pads to school girls. Mr. Essamuah might not see anything wrong with this picture. That is his democratic right. I see everything wrong with it; my democratic right.

And so I am tickled when Mr. Essamuah calls our views “preaching hopelessness.” Optimism is good. Baseless optimism is unwise. If the situation is pretty much hopeless, we must say it. It is the government’s duty to fix it!

Private Schools?
Mr. Essamuah has a problem with people whose children are in private schools, claiming that “most of the protesters” pay “fees in dollars and are ready to ship them out to foreign schools to become taxpaying citizens of other countries, as they look down upon our public schools.” That is intriguing. Mr. Essamuah, from which statistical bases did you arrive at or settle on your word “most”? What was your sample space and margin of error? And, by the way, it is illegal to pay fees in dollars in Ghana. If you know anyone who is still doing that, call the Bank of Ghana! But what takes the biscuit is your claim that the ability to send one’s children to foreign schools means one cannot love Ghana. Mr. Essamuah, can we ask the President which schools HIS children attend in Ghana and elsewhere? And, you and I, at some point, lived and studied in other countries. What does your conclusion say about you?

NPP?
Mr. Essamuah massages the refusal of the demonstrators to allow his good friend and one-time political ally, Asamoah Boateng to address them, and concludes that an unnamed “main rival” in the NPP was linked to this. That is funny. Obviously, Mr. Essamuah was not there. The chant was “no politician!” Need I say more?

Conclusion
The 1/7/14 #OccupyFlagStaffHouse demonstration was spontaneous. Unlike political parties, no one was bused there or paid money or given T-Shirts to appear. People got up from their homes, found their own way there, made their point, and went back home. Some government actors have desperately and laboriously sought to diminish what happened in many ways. But they have failed. The more they speak and write, the more they give traction to #OccupyFlagStaffHouse, and the more it becomes obvious that those “few” people drove a strong point home. The political establishment (howsoever constituted) has been forced to take notice. Even if the petition found its way into the nearest trash bin or shredder at the Flagstaff House, government has been put on notice that it doesn’t take a crowd to force a change. Sometimes all it takes is a few good men and women and children, prepared to take a “Stroll in the Park,” brave the elements and show no fear for fully-attired riot police!

Thanks, Mr. Essamuah for your “June 4 Opinion.” It reminds me of the statement ascribed to the murdered Thomas-a-Becket in T. S. Eliot’s “Murder in the Cathedral,” that:

We do not know very much of the future
Except that from generation to generation
The same things happen again and again.
Men learn little from others’ experience.
But in the life of one man, never
The same time returns. Sever
The cord, shed the scale. Only
The fool, fixed in his folly, may think
He can turn the wheel on which he turns.

In Tunisia, it took just one man!

 

Yours faithfully,

Ace Anan Ankomah

CAN AN INFORMATION TECHNOLOGY COMPANY ENTER INTO A CONTRACT TO IMPORT AND SUPPLY MOTORBIKES?

Saturday, May 24th, 2014

When I used to teach Company Law, I would often tell the students that there is one answer to almost every legal question: “IT DEPENDS.” I however stopped saying that when one student answered an exam question by quoting my flippant “IT DEPENDS.”

But in this situation, that answer applies, and I want to take you through the law that regulates the businesses that companies are authorised or not authorised to engage in.

The common law has evolved doctrine called “The Ultra Vires Doctrine.” Generally, it applies to acts beyond the scope of one’s defined powers. The term has a broad application and includes not only acts expressly prohibited but acts that are foreign to or in excess of powers granted, although not expressly prohibited. The term applies to either when an entity/person has no power to do an act, or where the entity/person has the power but exercises it irregularly.

Section 16(2) of the Companies Act mandatorily requires that the regulations of a company must state the nature of the business or objects which the company is formed to carry on. Normally referred to as “authorised object or businesses,” at common law the powers of a company is dependent on and governed by the objects/businesses as defined in the objects/businesses clause.

Section 25 of the Companies Act is emphatic that a company shall not carry on any business not authorised by the Regulations. This is a prohibition of ultra vires objects/businesses, and it is necessary to protect members and creditors, and to limit the nature of the business activities that the company can undertake to those that are expressly stated in its Regulations. By this enactment of the ultra vires doctrine, a contract made by a company beyond the scope of its objects/businesses and corporate powers is unlawful.

To that extent, it is, at least on the face of it, ultra vires for a company that is incorporated to engage in information technology, to be engaged in the import of motorbikes for another person.

However, that is not the full story. This is because section 24 of the Companies Act provides that in furtherance of its authorised objects/businesses prescribed in the Regulations, a company has all the powers of a natural person of full capacity. When sections 16 and 25 are read together with section 24, they mean that in addition to the company having power to engage in its authorised businesses, it may do such other things that are reasonably incidental or conducive to the carrying on of its business and/or attainment of its objects, except where they are expressly excluded in the Regulations.

Thus in determining whether a company has acted ultra vires its powers, the two-fold test is:

(1) Is the act an expressly authorised object or business?
(2) If not, is it reasonably incidental?

If the answers to both questions are in the negative, then the act is ultra vires.

However, section 25(3) states an act of the company is not invalid, merely because the act is ultra vires. Thus in Ghana, ultra vires acts, although wrong, are binding on the company, and the company cannot seek to escape its obligations under a contract simply because the contract is ultra vires. By this provision, Ghana law seeks to maintain whatever protection to members that the strict ultra vires rule offers, as well as prevent hardship to third parties.

This is further buttressed by proviso (b) to section 139, which states that a company cannot escape liability for acts undertaken concerning an unauthorised business, if in fact that business in being carried on by the company. Without this provision, the protection afforded to third parties under section 25 would be useless if having escaped the peril of the company’s incapacity, a third party is caught because the specific business to be undertaken by the company under the contract, is not mentioned in the company’s authorised businesses.

Section 139 is a codification of the so-called Rule in Turquand’s Case (Royal British Bank v. Turquand (1856) 6 E & B 327) which is to the effect that for business cannot be carried on if everybody who had dealings with a company had meticulously to examine its internal machinery in order to ensure that the officials with whom he dealt had actual authority.

Further, under section 141, the mere fact of the registration of any particulars or documents (e.g. the Regulations and the authorised businesses clause in it) with the Registrar of Companies, does not constitute notice to the whole world. Thus no one is under a legal obligation to ascertain whether a company has power under its Regulations to undertake a certain business before entering into a transaction with the company.

Section 142 provides that any person dealing with a company is entitled to assume, unless the contrary is known (actual notice) or ought to have been known (constructive notice), that the Regulations (including the provision on authorised businesses) have been complied with.

In Boohene Foods Ltd. v. National Savings and Credit Bank [1992] 1 GLR 175, the court recognised that it was a well-established presumption in the common law that an outsider dealing with a company was entitled to presume that its internal regulations had been complied with. Section 142, according to the court, has given that presumption a statutory backing. However, that presumption was rebutted by proof of express or constructive notice.

The question therefore, is whether a third party with actual or constructive notice that a company is not authorised to enter into a stated business, can come under the statutory protection of third parties. This question is answered, in part, in the case of Chellaram & Sons (Ghana) Ltd. v. Halabi [1963] 1 GLR 214, where the Supreme Court upheld an important exception to the rule, that a person who deals with a company and who has notice of an irregularity in its internal management in connection with the subject-matter of his dealings cannot take shelter behind the rule.

However, what the law does not say is that a person who enters into a transaction with a company with full knowledge that the transaction is ultra vires the company, can decide to abrogate or resile from the contract on that ground. The contract is valid and binding.

But that is not the full story. The authorised businesses of a company relate directly to the capacity of that company to undertake a stated venture. Thus a procurement entity or procurement authority (appointed by law to protect the public purse) that is required by law to investigate the capacity of a company, must definitely ask to see a company’s regulations and see what it says about the company’s authorised businesses. That is a clear indication of whether the company is able to deliver on the contract. If the company has put in a bid for a business outside its authorised business, that should put the procurement entity and procurement authority on notice with respect to the company’s track record in that line of business, or lack of it.

It would appear then that the only statutory remedy to preventing ultra vires transactions is an Injunction under section 25(4)&(5) of the Companies Act. An injunction is a judicial process requiring a person to whom it is directed to do or refrain from doing a particular thing, i.e. a court order commanding or preventing an action. Under the Act, any member or holder of a debenture secured by a floating charge over property (or his trustee) may apply to the court for an injunction prohibiting any ultra vires act. If the contract is yet to be made or performed, the court has the discretion to set aside and prohibit the making or performance of the contract. It may however award the company or the other party to the contract compensation for any loss or damage sustained by reason of the order of the court. However, compensation cannot be awarded in respect of loss of profits anticipated to be derived from the performance of the contract.

An applicant seeking an injunction to prevent a company acting outside it capacity, will have to bear the following in mind:

(i) It becomes the task of the court to determine, on a true construction of the objects clause, whether the proposed activity would be ultra vires;
(ii) If the act sought to be prohibited has already been performed, the remedy will not be granted;
(iii) Injunction is a discretionary remedy and will be granted only where the court thinks it equitable so to do; and
(iv) All parties to the ultra vires act should be made parties to the action because an injunction, if granted, will only be binding on parties to the action.

In conclusion, it is a wrong for a company that is incorporated as an IT company to engage in the importation of motorbikes, unless it can be shown that the importation of the motorbikes is reasonably incidental to its IT business. However, even though it is wrong, the law protects the other party who entered into the transaction, so that the company cannot escape liability simply because the transaction was ultra vires. And, the only people who can stop the transaction, are members or creditors of the company, but then only by way of an injunction.

So, you see, IT DEPENDS!

MAYBE FAUSTER HAS THE LAST LAUGH – AT OUR EXPENSE

Saturday, May 24th, 2014

Why was Fauster Atta Mensah able to pull off and get away with one of the most hare-brained scams of our times?

The answer lies in ourselves, as Ghanaians. We are a people so enamoured with titles and positions of honour that even where none exist, we create them. Fauster knew this very well and laid out a deliberate scam to milk it to the fullest, for as long as it lasted.

Some two decades ago, as a poor, broke scholarship graduate student, my pastor invited me to dinner in his home. Over the dinner table, his wife of Jamaican origin stated that “every Ghanaian I have met is from a royal family. Are you also from a royal family?” Right there was my opportunity to claim undeserved gravitas. I could say that I was the great grandnephew of Yaa Asantewa, that I am of royal warrior blood, that… My fertile mind went into overdrive. But at the same time, in those same split seconds, I said to myself that I ought to be accepted and appreciated for who I was, even if that “who” was nothing. And so my answer was a simple, mousy, little “no.” And that was the truth. I am not from the Akyem Achiase royal family. In fact, I don’t think that the current chief even knows my name. Ah, yes, I have heard that my late dad was from the Biriwa royal family, but as an Akan, I know that no one in my family has any claims to that or any stool. We are just who we are, ordinary Ghanaians, working hard to put food on our tables, clothes on our backs, roofs over our heads and money in our pockets so that we can pay taxes for the government to misuse. We do not need any empty titles or fake claims to any positions of honour to be worth who we are.

Take a look around you. Listen to our radio stations. You give an interview to a radio station, and when it is being played back, you are described as a “legal luminary,” when you have not illuminated anything in your life. I once spoke at a seminar on the legal aspects of bird flu. The next day I was a “legal expert in medical law.” A man arrived in Accra from his village and decides that he needs access to the top end of society. And so he renames himself “Prince”. He returns home, brings all his brothers and sisters to Accra, and names them “Prince” and “Princess”, as the case may be. All his children will bear the title. The next thing, one of these “Princesses” will show up in America claiming to be “Queen.”

Our Parliamentarians, Ministers, Deputy Ministers, and even Assembly Members carry the title “Honourable.” Meanwhile, in Britain, from where we claim to have borrowed it, it is not a title. It is a description, as in “Paul Boateng, the Honourable Member of Parliament for…” Only the Speaker of Parliament bears the title “The Right Honourable…” But here, the “Honourable” has left the description end and has become a much-cherished title. If you like, don’t call the man “Honourable” and see. Empty and vacuous.

Look at our pastors, especially those of the Charismatic ilk. As soon as their churches begin to grow, someone will pop up at their doors “selling” doctorate titles from some corner of the US. In a couple of weeks “Pastor so-an-so” becomes “Reverend Doctor so-and-so,” arrives in church wearing an academic gown and hat, with the 3 stripes of a “Doctor”, to loud shouts of glee and acclamation. And it is really laughable. The man has no bachelors or masters degree. But here he is, rocking an academic gown with 3 bands, and the ignorant church members are beside themselves with joy and ecstasy. Ah, people who have not written a dissertation, let alone a thesis in their lives, who do not know what a thesis defence or viva looks like, are demanding that us lesser mortals should address them with the title “Doctor.” What is worse, in academia properly so-called, honorary degrees do not become part of one’s title. But not in Ghana. We love them.

Look at our chieftaincy institution. It was used to be just “Na” or “Nana” or “Togbe” or “Nene” etc. Then we started adding further honorific, descriptive titles, which I will not mention here, but they mostly begin with “O”. Notice how we are moving from the description “chief” to the title “King”? But what what takes the biscuit now is “His Royal Majesty.” So that a man who has absolutely no natural claim a even a kitchen stool, now, on account of being made some insignificant developmental sub-chief, struts around the world holding himself out as “King so-and-so” bearing the further, comical description “His Royal Majesty.” Similarly, a caucasian appears in some rural community and shells out $2,000 to dig a borehole, he is quickly wrapped in a kente cloth, and place on a wooden stool. He returns home proclaiming to be King of Ghana. And, oh, did we not read about and see pictures of some Ghanaian ‘king’, driving a taxi in some western country, in full regalia?

Fauster is smart. He knows his people very well. He taps into who we are, and has a huge laugh at our expense. It may be that ordinarily, all his achievements, if written 10 times over, will fill a quarter of a sheet of paper, with space to spare. But he looks at us and says to himself that if he can but learn photoshopping, he would go very far with us, and enjoy the ride till it ends. And so he spends about a year or two building a false myth about himself. But it is full of holes, so many huge and gaping holes that any ordinarily diligent person could, would, should see the joke from a mile away. I mean, since when did the UN award Nobel Prizes? Read the stuff the guy has written about himself. The English he uses is extremely poor. His claims do not make sense. What did he say he studied at Adisadel? The story is so patently false that one would have thought that only a dunderhead would fall for it. But guess what? We love titles. And so he pops up in Ghana. I am not sure of the exact sequence but he succeeds in conning the title-loving church into giving him some honour. He also gains some recognition from the Government, acting by no other ministry but the Ministry SCIENCE & TECHNOLOGY, supposed to be our science and technology gatekeepers!! He appears on national TV, GTV, with aplomb, where the hapless, clueless host showers him with accolades. It was only after these that he was found out.

And so we may laugh at Fauster as much as we may want to. He is trending on social media. But whenever you see his photoshopped pictures, including the rather incredulous one where he is wearing eyeglasses while in a spacesuit, you should see ourselves in him. Actually, I think Fauster has the last laugh… at our expense.

SHOULD OFFICIALS WHO ENTERED INTO CONTRACTS WITHOUT PARLIAMENTARY APPROVAL BE MADE TO BEAR THE COST OF BREAKING THE LAW?

Monday, April 21st, 2014

My friend Professor J. Atsu Amegashie said to me, on a listserve that we write on that:

“If parliamentary approval was not obtained [for those transactions in respect of which arbitral awards have been issued against Ghana], then those who failed to do so broke the law. In any well-governed country, it is these governments officials, not the contractors, who will bear the cost of breaking the law (fines, jail terms, etc). Straightforward and simple. But in Ghana, we like doing things in a convoluted manner. This perpetuates a system of perverse incentives.”

MY RESPONSE:

Atsu, maybe. BUT:

There is a problem with holding officials responsible for not obtaining parliamentary approval, and it is a VERY LONG story.

The ‘problem’ of article 181(5)
You see, article 181(5) didn’t say that “all international contracts to which the government is a party must be submitted to parliament for prior approval.” If it had, then there would be a case for sanction for officials who failed or refused to seek and obtain the approval.

But this is what 181(5) says:

This article shall, with the necessary modifications by Parliament, apply to an international business or economic transaction to which the Government is a party as it applies to a loan.

WHAT THE HECK DOES THAT MEAN? Now, the first sub-articles of article 181 basically state that the government cannot take or grant loans without parliamentary approval, and then lays down a procedure for obtaining the approval for giving a loan and a different procedure for granting a loan.

Thus, the questions after 1992 were: what was the exact meaning of “shall, with the necessary modifications by Parliament, apply…”? Does it mean that parliament is given the power to amend the constitution by making mutatis mutandis “modifications”? And, does the article apply at all, if parliament has failed to make the “necessary modifications”? Are those “modifications” conditions precedent to the application of the article? And how far can the “modifications” go? Can parliament, for example, say that some agreements do not require its approval at all? Would that be a modification? Indeed can parliament “modify” this article to say that its approval isn’t required at all?

Other questions: What is the meaning of “international?” What is a “business… transaction”, and what is an “economic transaction”? What is a “transaction”? Is it synonymous with a contract or agreement or does it involve more. Is a contract a series of transactions or vice versa? What is the meaning of “Government” and when is the government a party to a transaction? etc. etc.

I remember at least one seminar organised by the IEA to try to understand this provision. And I have read a couple of papers where some academic suggested that we should remove article 181(5) from the constitution. Note that this provision did not appear in any of our previous constitutions and so we didn’t have the benefit of any previous application if it or guidelines for it. What is worse, the 1992 Constitutional Experts Commission itself said very little about this new provision to shed any light on how it is to be interpreted. We were left groping in the dark.

The result was that both the Executive and Legislature simply ignored article 181(5). Yes, some Mining Agreements and Petroleum Agreements were sent to parliament, but those were because of specific constitutional and statutory provisions to that effect. But generally no one bothered with contracts. Yes, loans went to Parliament under the 1970 Loans Act, but Parliament itself only has a terse provision on international contracts in its new Standing Orders, which provided no guidance on the matter at all.

[CAVEAT: At this point, let me make a personal disclosure: I acted for Balkan and Bankswitch and I am still acting for them. I was also the lawyer for one of the Defendants in the Klomega Case. I ‘lost’ Balkan in the SC – and you will see why I use ‘lost’ very soon. Apaak’s case against Bankswitch is still pending in the SC. AND SO ANY AND EVERY ONE IS ALLOWED TO TAKE WHAT I AM WRITING WITH THE APPROPRIATE DOSE OF SALT]

Faroe Atlantic
Finally in 2005 (13 years after article 181(5) was enacted), the SC had the opportunity to interpret it in the Faroe Atlantic Case. After all the song and dance, the SC held, in substance that:

1. article 181(5) meant that parliamentary approval was required for international business and economic transactions that the government is party to; and without it, the transaction is void, and

2. The transaction in question was “international” because the other party to the transaction was a foreign company.

THIS is where the decision ended. There was no attempt to answer any of the other questions that I had raised above.

Balkan
It was based on the Faroe Atlantic decision that AG Joe Ghartey issued his opinions in Balkan. Indeed he cited Faroe Atlantic in one opinion, stating that once the contractor in the Balkan PPA was a company incorporated in Ghana, then on the strength of Faroe Atlantic, the contract was not international. It is on the basis of this opinion that the government at the time decided not to take the Balkan PPA to parliament for approval, and so Ghartey wrote a second opinion to the effect that all necessary and required approvals for the PPA had been obtained.

When the change in government occurred, the new government dealt with Balkan until Balkan alleged a breach. Government triggered the arbitration clause in the PPA and asked Balkan to go for arbitration. Balkan filed the notice of arbitration. (Days later, its American manager of the Barge was arrested at Effasu for allegedly stealing parts on the barge and detained, in the words of the arbitral tribunal “in his underwear” at BNI in Accra – note: the arbitral tribunal ordered Ghana to pay damages of $50,000 for that arrest!!). Ghana participated in the preliminary ADR (mediation, I think) at The Hague, and then returned to Ghana to file an action in the High Court stating that the arbitral proceedings were wrong, and making allegations against Balkan. Indeed a High Court judge issued an ex parte injunction restraining Balkan from proceeding with the international arbitration that had already commenced! (Some of our judges forget that their orders are limited to the 4 corners of our physical boundaries.)

Our attempts to stay proceedings in Ghana for the arbitration to continue failed. The government then applied to the court to say that the case raised constitutional questions and so the High Court should refer the matter of interpretation to the SC. At the same time the government applied to the arbitral tribunal for an interim award to challenge the jurisdiction of the arbitral tribunal. It failed in both applications. The arbitral tribunal asserted its jurisdiction and the HC in Accra (differently constituted) refused its referral application, on the ground that article 181(5) had already been interpreted in Faroe Atlantic and so all the HC had to do was to apply that interpretation.

Of course there was no further recourse with respect to the arbitral tribunals interim award against Ghana, But dissatisfied with the HC ruling, Ghana then applied for a judicial review of the HC ruling, in the SC. It was successful and the SC ruled that the Balkan matter raised issues that it didn’t address in Faroe Atlantic and so there was a case for interpretation. When the substantive case for interpretation came up, the SC made the following interesting decisions:

1. The word “international” did not only apply where the other party is foreign. One should look at the substance of the agreements themselves so that even if the other party is a Ghanaian, where the contract contains terms that are usually found in international contracts, that contract was “international” and would require parliamentary approval.

2. Parliament should get its act together and pass the Act required under article 181(5). Until Parliament passes the Act, a certification by the AG (although it wouldn’t be binding on the SC), should be sought.

3. A new word, the qualifier “major,” should be read into article 181(5) so that it would only apply to “major international… transactions”, else Parliament would be saddled with approving all kinds of minor transactions. [I had argued that the President required parliamentary approval to buy a British Airways ticket to travel, and that every single purchase of a vehicle by government would also require parliamentary approval since we don’t manufacture any cars in Ghana. Yes, in response, the SC rewrote the constitution!!]

4. That an arbitration agreement is not an “economic or business transaction” and that parliamentary approval was not required for it. But in a rather shocking paragraph, the SC seemed to argue against the principle of separability, which holds that an arbitration clause in an agreement is treated as a distinct and separate agreement from the ‘mother’ agreement. What was worse, this ‘hallowed’ principle had only just been enacted in Ghana in the 2010 ADR Act (Act 798), but the SC appeared to argue against it. Yet the simply raised a question, did not answer it, but held that the arbitration agreement did not require parliamentary approval since it didn’t amount to a transaction anyway. [THAT is why I said ‘lost’ because that was all I needed to go back to the arbitration].

6. The court DID NOT declare the Balkan PPA void. It directed the parties to return to the HC for the continuation of the trial, on the bases of the decisions/interpretations that the SC had done.

However both Ghana and Balkan ignored the HC and went straight back to international arbitration. We now know the result – Ghana has to pay $12m.

Bankswitch
Note that the Balkan and Bankswitch arbitrations were going on at the same time. As soon as the SC decision in Balkan was delivered, Ghana, which had largely not really participated in the Bankswitch arbitration, suddenly woke up and filed its main defence (raised only after submissions had virtually been completed): that there was no parliamentary approval of the Bankswitch contract, and that on the basis of the SC decision in Balkan, the contract was void. But Ghana seemed not to know or had forgotten that AG Betty Mould-Iddrisu, just like AG Ghartey before her, had issued an opinion that it was a valid contract. Both AG Ghartey and AG Mould-Iddrisu issued their respective opinion with full knowledge of the decision in Faroe Atlantic. Thus in both Balkan and Bankswitch awards, Ghana was clobbered with the AG opinions as to the validity of the contracts, even though there was no parliamentary approval. We know the result in Bankswitch – Ghana has to pay almost $80m.

Klomega
In Klomega, the Plaintiff’s case was that article 181(5) applied to GPHA, and so the contracts signed with Meridian to manage the ports, were void. Note, Klomega’s lawyer when he sued, is the current Deputy AG. Although he didn’t appear again after his appointment, his firm continued with the case. We were successful in convincing the SC that the term “government” in article 181(5) did not apply to statutory corporations such as GPHA. But even with that the court held that if the government is seen to be using such corporations as a facade to enter into contracts and to avoid parliamentary approval (in what the court described as a local application of the alter ego principle), then the SC would hold the contracts void without parliamentary approval. But the other interesting part of Klomega was that the government filed two contradicting submissions: one supporting Klomega (filed by Martin Amidu before he was fired) and another against Klomega (filed by Marietta Brew when she was appointed AG). Ei, things dey happen for this our Ghana oo!!

Waterville and Isofoton
I guess these two ‘Martin Amidu’ cases are sufficiently well known, as a further application of the SC decision in Balkan. But note that in Isofoton, the rather activist SC issued a straight warning to the government that it was monitoring developments in the Chinese $3b loan matter, and that even though parliamentary approval had been obtained for the loan, all subsequent transactions involving Chinese entities would require parliamentary approval.

Government’s Quandry
Yes, it was government that went to the SC for the Balkan decision. The government supported Klomega and later withdrew its support for his case. One isn’t too clear on what the government’s stance was in Waterville and Isofoton. But the net effect of all these decisions is that international business is wary of Ghana. Now they demand parliamentary approval for every whiff of a contract, or no deal. Some are demanding ‘political risk insurance’ with very high premiums to protect themselves from our “coup mentality” when every change of government comes with attacks on contracts entered into by the previous government.

I can say that many major transactions have been stalled on that account. EXACTLY what is Ghana’s position on article 181(5)? We have blown hot, cold and lukewarm at the same time. We have spoken with a forked tongue and from both sides of our mouths. Some contracts, especially PPAs, that existed before the decisions have been quietly sent to parliament for belated approval. I laugh, because the approval required, according to the SC is supposed to be “prior” to the contracts. But here we have “ex post facto” approvals of existing contracts. Indeed, in one instance, the original agreement wasn’t sent to parliament – what parliament approved was the amendment!! Apparently parliamentary approval can now raise the dead. We are in Easter!

And so right now, questions are being asked whether the Gas deals require parliamentary approval. Yes, the deal is between GNPC (or was it the Ghana Gas Company?) and the Chinese. But the question now is that since the money utilised for the Gas project was from the loan that the government had obtained (remember the SC’s warning in Isofoton?), isn’t the government caught by the Klomega alter ego principle, so that the entire transaction would be void? MATTER DEY COME!!

So the AG has a problem. So what have they done? The AG and Finance Minister have gone back to parliament with proposals for the urgent enactment of the article 181(5) “necessary modifications” Act, so that there would be a blanket approval of previous deals, and deals like Ghana Gas, and that all deals flowing from previously approved loans and transactions would not require approval. In short, Ghana is asking parliament to allow it to roll back the effect of the decisions in Balkan (which Ghana took to court), water down the warning in Isofoton, and to kinda neutralise the alter ego part of the decision in Klomega!!

Parliament set up a committee to work on the matter. I am aware of only one meeting where they criticised themselves for not acting on article 181(5). Has the committee been meeting? I don’t know. I suspect it has promptly gone to sleep because I received an informal, verbal ‘invitation’ to appear. No formal letter received, and somehow, parliament is simply not dealing with this issue. Maybe, as Bagbin suggests, they committee needs some “T&T” to facilitate its work.

So, can we really hold government officials responsible for not obtaining parliamentary approval? I dunno, really, I dunno.

a.

PS. I beg it is still dawn and I have been typing for a little over an hour, Pardon my typos.

BRAINS DEVELOP A NATION, NOT RESOURCES

Monday, November 11th, 2013

BRAINS DEVELOP A NATION, NOT RESOURCES

Speech delivered by Ace Anan Ankomah, Guest Speaker, University of Ghana Congregation, Great Hall, Saturday 9 November 2013

Mr Chairman, Professor Vice-Chancellor, Professors Pro-Vice-Chancellors, esteemed members of the University community, graduands, ladies and gentlemen,

26 years ago, as an incoming student, I was going through registration, right in this Great Hall. As we waited in line, I struck a conversation with one Lawrence Mefful (who later became a Major in the Ghana Army, and a lawyer, and unfortunately died in combat working for the United Nations in Afghanistan not too long ago).

Lawrence had been my senior in Mfantsipim, and was working as one of the registration assistants here. As we chatted, he offered a piece of unsolicited, yet life-changing advice that struck a chord, and stuck, with me throughout my stay here. He said: “don’t just go through the school; let the school go through you.”

In Legon, you have had positive and negative experiences. You have also had experiences that fall somewhere between positive and negative. These, and how you dealt with them, will have an impact on what you do in life, from here. One of my favourite writers, who goes by the simple name of Paul, wrote, many years ago about how ALL things must work together for your good. This revelational writing finds its way into the Bible, and the key point is not that all things are good. He says that the good, bad and in-between things, ALL THINGS, must work together to produce good.

Ladies and gentlemen, the way you dealt with that difficult roommate here, will tell on how you deal with that difficult co-worker at your office when you leave here. The lecturer who did not like you, was probably just preparing you for the boss who will give you a tough time on your first job. In what way has Legon prepared you to deal with those situations? If all you take from here is a degree, then I suggest to you that you have short-changed yourself. The big question is whether the school has gone through you, or you have merely gone through the school?

Before I got to Legon, I was fascinated by sayings and mantras. I still am. My best, before I got here was “failure has no breeding grounds where discipline and dedication lie.” That is still true. But discipline towards what? And dedication to what? This is what brings me to my main theme today, which I heard just a couple of days ago from my friend and classmate in Legon, Professor Francis Botchway, now Professor of Law at Qatar University: “BRAINS DEVELOP A NATION, NOT RESOURCES.” And to that, I add something else that I have heard: “RESOURCES ARE NOT…, THEY BECOME…”

One of my most favourite comparisons of countries is between Ghana and Switzerland. I am certain that Switzerland earns more money from chocolate and cocoa products that we earn from selling cocoa. I am also certain that the closest cocoa tree to Geneva is in the Ashanti Region of Ghana, as the crow files. We got the resource, they got the….. [you said it, not me]. The manufacturer in Ghana of easily the most favourite chocolate drink in Ghana, Milo, is a company called Nestlè. Guess what? Nestlè is a Swiss company. We got the resource, they got the… [you said it again!]

I am always reminded of an African proverb, which says that “a man/woman has to hold his/her mouth open for a VERY LONG time before a roasted guinea fowl flies into it.” Often, that is our problem. Life is not waiting for us. “The future started yesterday, and we are already late,” sings John Legend, the musician.

Alvin Toffler writes that “the illiterates of the 21st Century will not be those who cannot read and write, but those who cannot LEARN, UNLEARN AND RE-LEARN.” That is what this institution is supposed to turn you into: not just a degree holder, but a person with the ability to learn, unlearn and learn again. It is all about the mind. That is why the late Robert Nesta Marley (more popularly known as “Bob Marley”) famously sang that “none but ourselves can free our own minds.”

You are what you think you are. If you think that you are a grasshopper, you are a … [now you are giving my speech.] But if you think that you are an achiever and a giant, that is exactly what you are. It is said in the Good Book, again, that “as a man thinks in his heart, so is he.” It is that thinking, the developed brain, that will develop this nation. “Resources are not…, they become…”

I am of the firm belief that the solutions to Ghana’s problems are in Ghana. Many of them are hiding right here in the various faculties and archives of our universities. Why do I say that? Every year, literally hundreds of students engage in supervised project work, theses and dissertations, all of which identify and actually solve, at least on paper, many of the problems that confront us. Loads of research have been conducted in, for instance, our Bio-Chemistry and Engineering faculties. These should feed industry; but there are no linkages. We have to start digging out those archives and bringing to life, for us to learn, unlearn and relearn that vast wealth of solutions that are presently in hiding. It is the mind that develops a nation, not resources.

Paul, my favourite writer also boasts about “one thing” that he does, which he particularises into three – yes, three, wrapped in one. He says that (i) he “forgets the things that he has achieved,” (ii) he “reaches forth towards the things that are ahead”, and (iii) he “presses forward.” Yes, those three constitute just one thing – LIFE. You build on what you have experienced as a basis for aiming, and then moving forward. Your university degree is the foundation. Today, you must be in that “forget” state, and start reaching towards new things, and then pressing towards them. Look, life is not impacted by those who have merely touched or tickled it. Achievers PRESS and PUSH towards the mark.

Ladies and gentlemen, I do not believe in coincidences and so I particularly identify with this graduating class. This is because a few years ago, I was the Chairman of a scholarship scheme run by an organisation called Changing Lives Endowment Fund, which offers scholarships to help some students through second-cycle and tertiary education. It is significant that two of our very first beneficiaries have graduated today as part of your class, and I would want to take this opportunity to salute Miss Paula Duah and Miss Rejoice Okai.

Ladies and gentlemen of the 2013 graduating class, I salute you and welcome you to life. There is no end to this journey. We have to break bounds and expand territories. That journey begins and continues in the mind. The journey is the destination. But you must always remember, that there is a God who rules in the affairs of men, and who says, through the same Paul, that “it is not of him who wills, or of whom who runs, but The Lord who shows mercy.” Yes, be geared to the times, but don’t forget to be anchored to that Rock.

You are who Ghana has been waiting for. We have been waiting, for a long time, for your brains arrive and develop this country. Do not disappoint us. I welcome you to life with another of my mantras:

When others sit, you must stand.
When others stand, you must stand out.
When others stand out, you must be outstanding.
And, when they become outstanding, you must become the standard.

May God bless you and us all.

ASAMANI, THE FIRST AFRICAN GOVERNOR OF THE CHRISTIANBURG CASTLE (1693-1694)

Tuesday, June 11th, 2013

Introduction
I first heard about Asamani in primary school history, as the man who conquered the Christianburg (Osu) Castle from the Danes in 1673 and served as its Governor for a year. I do not know of any major monument that has been named after him, and he is definitely not as popular in Ghanaian folklore as, for instance, Asante Kings. The writings about him appear fractured and various writers give different accounts of what he achieved. It is from a few of these sources that I have pieced this together.

Who was Asamani?
Asamani was from Akwamu. In one version of the history, he was employed as a cook in the English forts in Accra and spent a lot of time learning the ways of the Europeans. Soon, he became an established trader in Accra, and was a broker for Akwamu traders who came to Accra to trade with the Danes, who owned and operated from the Castle.

His rise as a businessman coincided with strife between Akwamu on the one hand and the Gas and the Danes, on the other hand, over who should have control over trading on the coast. In the 1670s, Akwamu attacked Accra, but that was foiled by the Gas with the support of the Danes. The pride of the Akwamu King was irreparably bruised. He could neither forgive nor forget what had happened to him, and therefore sought ways to revenge his defeat. He commissioned the prominent Accra-based Akwamu businessman, Asomani, to put this plot into effect.

In another version of the history, Asomani was a troublesome and fierce general of the Akwamu army, who had led raids against the Ga, the Akyems and the Akwapims.

The Capture of the Castle
What is however clear is that it took Asomani some time to come up with a plan that would bring his King’s wishes to fruition. Asomani kept a keen and close eye on the Castle and in 1693, he determined that it was time to invade and capture the Castle. In that year, the Danish occupants of the Castle had been reduced by death and disease, and were in no position to offer any serious resistance to any invasion. That, to Asomani, was the best time to strike. He put together a fighting force of some 80 men, and disguised them as merchants who wanted to buy in arms. But they had concealed bullets in their cloth, and once they had been allowed entry into the Castle and given access to the armory to inspect the guns, they loaded the guns with the bullets. They turned the guns on the Danes, who quickly surrendered.

The Governor is said to have escaped, wounded to the nearby Dutch fort called Crevecceur. But according to Akwamu accounts, Asamani killed him. The remaining Danes were captured and sent to Akwamu as captives.

He hoisted his personal flag (a white flag with a black warrior insignia) over the Castle, and announced and installed himself as the “Governor of Christiansburg Castle.” He then extended friendship to all traders along the coast, irrespective of their nationality (especially the English and the Dutch). He had a peculiar love for guns and cannons and is said to have welcomed all ships approaching his Castle by firing the cannons. He is said to have entertained captains of trade ships to expensive, elaborate dinners, and he appeared at such dinners in the full dress of a Danish Governor.

The End of the Governorship
There are at least three versions of how his rule as Governor ended in 1694. In one version, he sold the fort back to the Danes for 50 marks of gold (worth about £300,000 today. In a second version, the Danes sent an expedition to capture the Castle, but the obviously scared expedition force could only camp at Fort Crevecceur and negotiate with the Governor from there. In yet another version, he was out-manoeuvred by his King, Basua, who took 100 marks of gold as a ransom for the captives and for the return of the Castle’ and then ordered Asamani to hand the Castle over to the Danes.

Without knowing which version is accurate, what is true is that in 1694, Asomani peacefully ceded the Castle to the Danes.

The New, Improved Asamani
What is significant (and is the key lesson), for me, is that Asamani did not slip into oblivion thereafter. He took full advantage of his newly-acquired status, wealth, friendships and contacts, and re-established himself as a successful business man at Labadi. He had kept all the money he made while as Governor, refused to pay reparations to the Danes, and invested that money in his new, expanding business. He remained a thorn in the side of the Danes by diverting a lot of business from the Danes to himself. The Danes are reported to have made at least one unsuccessful attempt to force him out of Labadi. When that failed, they put pressure on a new Akwamu King, Ado, who succeeded in forcing Asamani to move his business empire to Ningo. He eventually wound up his business, resettled in Akwamu, and in 1703, became a minor chief.

As a chief, he is said to have lived in some colour and style. He built a palace and mounted on it, his favourite cannon. Foreign visitors still came to pay him visits and homage, and with every such visitor, he would fire the cannon as a welcome. He became known for his prodigious use of gun powder. Somehow, after 1704, he disappeared from European records, and that is the last that we read of him, because this part of our history was written by the Europeans, who obviously lost interest in what he had become, a chief of a small town.

The keys to the Castle, which he seized when he invaded, are still in the Akwamu Palace.

http://akwamuman.org/test/index.php?option=com_content&view=article&id=78:asamani&catid=42:history&Itemid=29

http://books.google.com.gh/books?id=8seV5xexFHgC&pg=PA352&dq=asamani+akwamu&hl=en&sa=X&ei=XEe3UaE7geo4y8KBoA8&ved=0CC4Q6AEwAA#v=onepage&q=asamani%20akwamu&f=false

YES, SERMONS ARE PROTECTED BY COPYRIGHT

Friday, November 16th, 2012

I have, in a couple of radio interviews and on Facebook, expressed my views, based on my understanding of Ghana’s copyright laws, on the heated debate relating to what may be called ‘the Otabil Tapes’ where the respected Pastor Mensa Otabil has expressed strong reservations at the unauthorised used of his voice and sermons by a group called Education Watch as part of the current political campaign. I received a call from Kweku Baako, Managing Editor of the ‘New Crusading Guide’ newspaper, requesting that I put my thoughts in writing. This is what I have produced for him and his paper.

Yes, sermons are protected by our laws on copyright, and may only be used with the consent of the author consents or under circumstances expressly permitted by law. However ‘legalistic’ or ‘religiously objectionable’ this may sound to some, particularly those who hold the view that the ‘Word of God’ should not be subjected to such ‘earthly’ laws, the fact remains that sermons are copyright protected.

The copyright law of Ghana is generally captured in the provisions of the Copyright Act, 2005 (Act 690), which repealed and replaced the long-standing Copyright Law, 1985 (PNDCL 110).

A Sermon is a protected Literary Work
Section 1(1) of Act 690 provides a list of “work eligible for copyright” and states that authors, co-authors or joint authors of those works are entitled to copyright protection. The first on that list is “(a) literary work,” which term is defined by section 76 to include “(f) lectures, addresses or sermons” [Emphasis added.] There is therefore no doubt that Act 690 protects the rights of an author of a sermon, as literary work.

Authors’ Economic and Moral Rights
The rights of authors of copyright protected material are generally expressed as “economic” and “moral”. Section 5 of Act 690 protects authors’ “exclusive economic rights” to reproduction, translation, adaptation, arrangement or any other transformation, public performance, broadcasting or communication to the public, distribution, and commercial rental of their work.

Section 6 states that in addition to economic rights, an author has “the sole moral right” to claim authorship and demand that his name or pseudonym be mentioned when any of the acts referred to in section 5 are done in relation to the work, and to object to and seek relief where there has been “a distortion, mutilation or any other modification of the work, where that act would be or is prejudicial to his reputation or where the work is discredited by the act” [Emphases added.]

These provisions capture the basic statutory rights of authors, including authors of sermons. For example, and with particular reference to “moral rights” where the author of the sermon is a proclaimed apolitical or politically neutral person, the reproduction of his sermon(s), designed in such a way as to cast him in a political light is clearly prejudicial to his reputation and amounts to a violation of his moral rights over the sermon.

Permitted Uses
However, that does not mean that copyright protected sermons cannot be used by other persons at all. As pointed out, under section 5, the author may authorise the use of his material, and that use would not be a breach of the copyright. Further, Act 690 contains, in section 19, certain “permitted uses” of copyright protected material. Of particular relevance is section 19(1)(g)(iii), which states specifically as follows:

“(1) The use of a literary or artistic work …is not an infringement of the right of the author in that work and does not require the consent of the owner of the copyright where the use involves…(g) subject to subsection (4), the reproduction in the media or the communication to the public of… (iii) lecture, address, sermon or any other work of a similar nature delivered in public, where the use by reproduction or communication to the public is exclusively for the purpose of reporting fresh events or new information.” [Emphases added.]

The effect of this section is that if the conditions (emphasised by me) are met, then the otherwise protected material may be used, even without the author’s consent. The first relevant and critical condition is that the reproduction is wholly and absolutely to give an account of “fresh events or new information.” That is where the current debate on the copyright status of sermons runs into the law. The persons seeking to rely on those sermons, today, have a huge burden of showing that those sermons delivered in the past, somehow report fresh events or new information. It is however clear to me that if the sermon(s) being used was/were delivered in the past, it cannot be claimed as “reporting fresh events or new information.” Such a use is not permitted by law.

The next relevant condition is contained in section 19(4), which provides as follows:

Paragraph (c) of subsection (1) does not apply in respect of a particular work unless the use referred to in that paragraph is compatible with fair practice and the source of the work used and the name of the author are indicated in the relevant publication, broadcast or recording.” [Emphasis added.]

Once again, where a sermon was preached in the past and was not directed at any current issue, but is subsequently reproduced in a manner that suggest that it does, then certainly, that use is not compatible with fair practice. A practice is “fair” if it is reasonable or unbiased and done properly according to the applicable rules. My views are three-fold. First, the use of work via deliberate distortion, intentional mutilation or wrongful modification, and which therefore violate the “moral rights” of an author, cannot be “compatible with fair practice” by any stretch of any legal principles or any person’s fertile imagination. Second, the use of a previous sermon under circumstances that suggest that it either relates or is related to a current issue, is plainly dishonest. Third, the “splicing and dicing” and “cutting and pasting” of different parts of different sermons, to present them as one sermon, is devious and does violence to notions of fair practice. These fall squarely within the prohibition contained in section 19(4) of Act 690.

Yet another relevant permitted use of copyright protected material is contained in section 19(1)(d)(ii), with respect to “a broadcast on current economic, political or religious topics,” where “the broadcast or any other communication to the public where a statement of the source is provided unless the article or broadcast when first published or made was accompanied by an express condition prohibiting its use without consent.” Note, first, that this provision relates only to a “broadcast” by an author; thus so if the matter has not been the subject of a broadcast, this permitted use does not apply. Second, the use of the word “current” shows that the broadcast must be on a recent or present matter. In the context of the sermons in question, (even if they were broadcasts, which is not the case) they have been explained to have been preached at times when the relevant “current” matters (to which they are being massaged to apply) had not arisen, and/or did not relate to them in any way. Further, once the author had reserved his copyright even to that sermon, then that use is not permitted. I have noted the words “all rights reserved” on the relevant CDs and tapes. It would appear that this permitted use does not apply to the matter at hand.

Are Sermons in the Public Domain?
Finally, I have also heard it claimed that sermons do not enjoy copyright protection because they are in “the public domain.” That is clearly and respectfully untrue or uninformed. The term “public domain” has a strict definition within the context of copyright law. Section 38(1) of Act 690 provides only 3 categories of works that “belong to the public domain.” These are

“(a) works with expired terms of protection,
(b) works by authors who have renounced their rights, and
(c) foreign works that do not enjoy protection in the Republic.

Clearly, the sermon(s) in question do not fit under any of the above categories, and accordingly the phrase “public domain” does not apply to the sermons. Further section 38 contains regulations for the use of “public domain” work. It does not appear that those regulations have been followed at all.

Sanctions
The law provides both criminal and civil sanctions for the breach of a person’s copyright. Under section 43, copyright violation is an offence and a person who is convicted is liable to a fine between GH¢6,000 and GH¢12,000 and/or to imprisonment not exceeding three years. Where the offence is continuing (as appears to be the case presently), there may be a further fine between GH¢300 and GH¢1,200 for each day during which the offence continues. Note that this offence is committed, not only by the person who put the plagiarized work together, but anyone who continues to disseminate the material.

Where the offender is a corporate body, every director or secretary shall be deemed to have committed the offence, unless the person can satisfy the court that some other person committed the offence without his consent or connivance, and that he “exercised due diligence to prevent the commission of that offence having regard to the circumstances.” Thus, and for instance, it would be very difficult for a director of a radio station that gleefully continues to disseminate such work, in the face of clear objections by an author, to set up the defence of “due diligence.”

In the exercise of its criminal jurisdiction, and under section 46, the court may seize the offending material and may direct that monies arising out of the offence be paid to the author. Again, for instance, a radio station may be compelled to pay to an author, all monies it has earned from airing a commercial advert that wrongfully contains copyright material.

With respect to civil sanctions, section 48 provides that a wronged author may obtain injunctions to restrain the further dissemination of the word and damages for the breach of his copyright. The law specifically allows for what lawyers call ‘Anton Piller-type injunction’ applications to be moved ex parte (i.e. when the application is taken or granted at the instance and for the benefit of one party only, and without notice to, or contest by, any person adversely interested) and in a judge’s chambers, for the inspection or removal from a defendant’s premises of copyright infringing materials which constitute evidence of infringement by the defendant.

Conclusion
In conclusion, and on the bases of the above (the law and all the exceptions and conditions discussed), my respectful view is that sermons are indeed protected under our copyright laws, subject only to (1) the consent of the author or (2) applicable statutorily permitted uses. And, the law prescribes some severe punishment upon the breach of a person’s copyright.

GHANA’S JUDGMENT DEBT CRISIS, ITS ATTENDANT FINANCIAL GOVERNANCE PROBLEMS AND IMPLICATIONS ON NATIONAL DEVELOPMENT – FROM A LEGAL PERSPECTIVE

Monday, October 1st, 2012

Presented by Ace Anan Ankomah as Guest Speaker at the 6th Moderatorial Luncheon, organised by the Presbyterian Church on 28th October 2012

DEFINITION OF KEY/RELEVANT TERMS:

Judgment – The official and authentic decision of a court of justice upon the respective rights and claims of parties to an action or suit, litigated in the court and submitted to the court’s determination. Conclusion of law upon facts found or admitted by the parties or upon their default in the course of the suit. Onslow v. IRC (1890) 25 QBD 465 per Lord Esher MR: “A judgment is a decision obtained in an action…”

Final Judgment – disposes of the subject matter of the controversy or determines the litigation as to all the parties on its merits.

Interlocutory Judgment – merely establishes the right of a party to recover in general terms, determines some preliminary or subordinate point or plea, settles some step, question or default arising in the process of the action, but does not adjudicate the ultimate rights of the parties or finally put the case out of court.

Default Judgment: A judgment obtained on account of the Defendant failing to either enter appearance or file a Statement of Defence.

Summary Judgment: a judgment obtained by a plaintiff who is able show that there is no answer to his case, without having to go through a full trial, where the defendant is unable to set up a bona fide defence or raise an issue against the claim which ought to be tried. This provides early judgment in cases where the defendant has no hope of success and any defence raised will merely have the effect of delaying judgment. The court then grants judgment SUMMARILY, i.e. without the delay and expense of a full trial, because it is satisfied that no trial is necessary.

Judgment on Admissions: Judgment entered on account of an admission made by a party in his pleading, an affidavit, in discovery or under any examination under oath or affirmation in and out of court.

Consent Judgment: A judgment, the terms of which are settled and agreed by the parties, and filed in and entered by the court. In effect, they are merely contracts acknowledged in open court and ordered to be recorded, but bind the parties as fully as other judgments.

Arbitral Award: The decision or determination rendered by arbitrators upon a dispute submitted to them. Upon obtaining the leave of the High Court (after an application) it will be enforced as if it is a judgment of the court.

Mediation Agreement: A mediator intervenes between two contending parties to help reconcile them or persuade them to adjust or settle their dispute. The mediator does not make an award or pass a judgment. He helps the parties to enter into a “Settlement Agreement.” When the parties sign the Settlement Agreement, it becomes binding between them, and has the same effect as an Arbitral Award.

Debt – a sum of money due by certain and express agreement, arising upon an express or implied contract.

Judgment Debt – a debt, for the recovery of which a judgment has been entered.

HOW JUDGMENT DEBTS ARISE:

  1. Negotiation Stage
    a. Negotiation skills
    b. Knowledge (technical) of the subject area
    c. Contractual “give and take”
    d. Preliminary “heads of agreement”
    e. Memoranda of Understanding
    f. Involvement of the AG’s Office/Legal Departments of the various Ministries
  2. Drafting Stage
    a. Legal advice (from the AG)
    b. Reducing all heads of agreement into writing
    c. Choice of Law Clauses
    d. Dispute Resolution Clauses
  3. Performance/Execution Stage
    a. Fulfilling our side of contractual obligations
    b. Technical expertise
    c. Parliamentary approval? Loans/International Business & Economic Transactions
  4. Dispute Resolution Stage
    a. When breaches occur (causes – arrogance, lack of understanding, change of government)
    b. Litigation/Arbitration/Mediation/Negotiation
    c. Filing times and difficulty in obtaining responses from the relevant ministries (who is the client?)
    d. Lack of expertise in civil trials and international arbitration (technicalities – substantive and procedural)
    e. Legal costs (foreign lawyers)
  5. Execution of Money Judgments
    a. Enforcement against the State – Certificate of Particulars
    b. Any role for auditing at this stage?
    c. Enforcement of foreign judgments – Registration v. Commencement of fresh proceedings
    d. Enforcement of arbitral awards – Leave to enforce
    e. Enforcement Methods
    i. Writ of fieri facias (fi.fa.) – authorises the Registrar to seize and sell the execution debtor’s property, sufficient to satisfy the judgment debt, post-judgment interest (if any) and execution costs, and directs the Registrar to pay the plaintiff the amount levied in execution
    ii. Garnishee proceedings – proceedings by which a judgment is satisfied by reaching the credit or property of the judgment debtor in the hands of another person (usually a bank).
    iii. Charging Orders – provides the judgment creditor with the equivalent of a mortgage over land specified in the order or on a judgment debtor’s beneficial interest in securities

RECOMMENDATIONS:

  1. Judgment Debt Czar?
    • In current political parlance, a ‘czar’ is somebody given authority, especially for dealing with a particular issue or problem
    • Short-term solution only
    • Duplicity? Public Accounts Committee of Parliament?
  2. Training, Due Diligence
    Continuous, rigorous External Training, Internal training, Cross-pollination, re relevant officials.
  3. Wake the Auditor-General up from Slumber!!
    Auditor-General has constitutional powers of “Surcharge” and “Disallowance.”

Constitution, Article 187(7)(b):
“In the performance of his functions under this Constitution or any other law the Auditor-General… may disallow any item of expenditure which is contrary to law and surcharge, (i) the amount of any expenditure disallowed upon the person responsible for incurring or authorising the expenditure; (ii) any sum which has not been duly brought into account, upon the person by whom the sum ought to have been brought into account; or (iii) the amount of any loss or deficiency, upon any person by whose negligence or misconduct the loss or deficiency has been incurred.”

These powers are reiterated and fleshed out in sections 17, 18 and 20 of the Audit Service Act, 2000 (Act 584). Under section 17 the debt created by the surcharge will be recovered as a debt by way of civil proceedings. The person surcharged also has a right of appeal to the High Court. And, the Auditor-General CANNOT revoke a surcharge except with prior parliamentary approval. Under section 20, the Auditor-General must report to Parliament (and effectively to the people of Ghana), where
• an appropriation was exceeded or was applied for a purpose or in a manner not authorised by law;
• an expenditure was not authorised or properly vouched for or certified;
• there has been a deficiency through fraud, default or mistake of any person;
• applicable internal control and management measures are inefficient or ineffective;
• the use or custody of property, money, stamps, securities, equipment, stores, trust money, trust property or any other assets has occurred in a manner detrimental to the Republic;
• resources have not been used with due regard to economy, efficiency and effectiveness in relation to the results attained; and
• any matter, which in the public interest, should be brought to the notice of Parliament.

4. Crack the Whip/Enforce the Laws!
‘Revolutionary’ False Certification:
Government Contracts (Protection) Act, 1979 (AFRCD 58)
— A person who is responsible for issuing certificates for the payment of money out of public funds to contractors or any other person in respect of Government contracts, is jointly and severally liable with that contractor or that other person for the refund of the money so paid where he issues the certificate for payment

  • knowing that
    ◦ the work/service has not been performed,
    ◦ the goods have not been supplied, or
    ◦ the money was not otherwise due under the contract; or
  • recklessly careless whether
    ◦ the work had been done or not,
    ◦ the goods have been supplied or not, or
    ◦ the money is otherwise due under the contract or not; or
  • where in the issue of the certificate that person was grossly negligent.

Without prejudice to the civil liability, (i) that person, (ii) the contractor, and (iii) any other person who knowingly accepted a payment made in any of the above circumstances is liable to a fine of up to three times the amount of money of the improper payment or to imprisonment of up to 10 years, or to both.

— Where it is proved
• that the person responsible for the certificate was bribed into issuing the certificate, or
• that the issue of the certificate was otherwise attended by a corrupt practice,
Both the ‘bribor’ and the ‘bribee’, and any other person who knowingly participated in the bribery/corrupt practice commits an offence and is liable to imprisonment (between 5 and 15 years), and a penalty equal to three times the amount of money of the improper payment.

CONCLUDING COMMENTS
 Do we care?
 Do we mind?
 Do we simply shrug?
 Does it hurt?
 What keeps you up and tossing at night?
 What keeps you burning during the day?
 What is our stake in the enterprise, Ghana inc.?
 Should the last Ghanaian leaving the realm remember to turn out the lights?
 Or do we see, by faith a storm, birthed out of nothing but a cloud, no larger than the size of a man’s fist?