IN_THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE; © 7-9. (70 | (HUMAN RIGHTS DIVISION) { S¢-Qenipm ACCRA - A.D. 2019. SUIT NO. KE th2-[o04 € J202~ IN THE MATTER OF THE ECONOMIC AND ORGANISED C! OFFICE ACT, 2010 (ACT 804), AND IN THE MATTER OF AN APPLICATION BY THE AUDITOR GENERAL OF THE REPUBLIC OF GHANA FOR THE ENFORCEMENT OF HIS FUNDAMENTAL HUMAN RIGHTS PURSUANT TO ARTICLES 23 AND 33(1) OF THE 1992 CONSTITUTION OF THE REPUBLIC OF GHANA. BETWEEN THE AUDITOR - GENERAL, a AUDIT SERVICE, S000 LELSS GA - 110-8787, MINISTRIES, ACCRA. a APPLICANT. AND THE ECONOMIC AND ORGANISED CRIME OFFICE, BARNES ROAD, ADJACENT OLD PARLIAMENT HOUSE, HIGH STREET, ACCRA. aoe RESPONDENT. NOTICE OF MOTION. APPLICATION FOR THE ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS. (ORDERS 19 r 1(1) and (2) AND 67 r 1 and 2(1) OF C.1.47), Page 1 of2PLEASE TAKE NOTICE that this Honourable Court shall be moved by THADDEUS SORY ESQ. of MESSRS SORY @ LAW, counsel for and on behalf of Applicant herein praying this honourable court for the reliefs deposed to in the affidavit in support of the application and for the enforcement of Applicant’s fundamental human rights upon the grounds deposed to in the accompanying affidavit. And for such further order or orders as to this honourable court may deem fit. DATED AT ACCRA THIS 19TH DAY OF NOVEMBER, 2019. SOLICITORS FOR APPLICANT. LICENSE NO. eGAR 00046/20. CHAMBERS REG. NO.0000708/19. TIN OF CHAMBERS C0001356860. BUS. PARTNER (BP) NO. OF GEAMBERS 3009022181. H/No. 4, 2ND CLOSE BOUNDARY 'ROAD EXTENSION NEAR _UBA BANK EAST LEGON, ACCRA TEL: 0302- 542770 THE REGISTRAR, HIGH COURT, (HUMAN RIGHTS DIVISION), ACCRA AND FOR SERVICE ON: 1. THE ABOVE-NAMED RESPONDENT; THE ECONOMIC AND ORGANISED CRIME OFFICE, whose address for service is; BARNES ROAD, ADJACENT OLD PARLIAMENT HOUSE, HIGH STREET, ACCRA. 2, THE ATTORNEY-GENERAL, ATTORNEY-GENERAL'S DEPARTMENT, MINISTRIES, ACCRA. Page 2 of 2 Suet Te BE MovED on bittahs To aoe Rag,4 OMe De. EAL T INTHE SUPERIOR couRT oF JupIcaTuRE;*|'|>\€O'n N_RIGHTS DIVISION) Oe ACCRA - A.D. 2019. SUIT NO. .. IN THE MATTER OF THE ECONOMIC AND ORGANISED CRIME OFFICE ACT, 2010 (ACT 804). AND IN THE MATTER OF AN APPLICATION BY THE AUDITOR GENERAL OF THE REPUBLIC OF GHANA FOR THE ENFORCEMENT OF HIS FUNDAMENTAL HUMAN RIGHTS PURSUANT TO ARTICLES 23 AND 33(1) OF THE 1992 CONSTITUTION OF THE REPUBLIC OF GHANA. BETWEEN THE AUDITOR - GENERAL, AUDIT SERVICE, GA - 110-8787, MINISTRIES, ACCRA, 5 APPLICANT. AND ‘THE ECONOMIC AND ORGANISED CRIME OFFICE, BARNES ROAD, ADJACENT OLD PARLIAMENT HOUSE, HIGH STREET, ACCRA. RESPONDENT. APPLICANT’S AFFDIVIT IN SUPPORT OF APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS. ORDER 67 rule 2(1) OF C.I. 47. Page 10f 9I, DANIEL DOMELEVO of No. 6, Mantse Ayiku Avenue, Baatsona, Acera in the Greater Accra Region of the Republic of Ghana, make oath and say as follows; 1. That I am the deponent herein and the Applicant in the above intituled application. 2. That I am the Auditor-General of the Republic of Ghana constitutionally and statutorily appointed by His Excellency the President of the Republic of Ghana and tasked with the responsibility of among others auditing the public accounts of Ghana and of all public offices, including 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 organisation established by an Act of Parliament. 3. That accordingly 1 depose to this affidavit for and on my own behalf in support of the application before the Court which has been mounted on my instructions. 4. That the facts to which I depose in my instant affidavit are within my personal knowledge, information and honest belief. 5. That I acquired knowledge of the facts to which I depose in this affidavit as a result of my direct involvement in the matters about which I depose in this affidavit and which provide the cause for my instant suit against Respondent, which is the Economic and Organised Crime Office [hereafter simply called “Respondent” or “the Office”). 6. That to the extent that any of my depositions in this affidavit suggest, imply, raise and/or hint at matters of law, such depositions are based on the advice of my lawyer, which advice, Page 2 of 9I verily believe to be true and rely on in the prosecution of my application before the Court. . That at the hearing of this application, my counsel shall seek the leave of this Honorable Court to refer to all processes filed in connection with the instant application as if all such processes were incorporated in my present affidavit and deposed to accordingly. Respondent is an institution statutorily established in accordance with the Economic and Organised Crime Office Act, 2010 (Act 804) as a specialised agency tasked with the responsibility, specifically of monitoring and investigating economic and organised crime for which reason its statutory objects and functions as particularised by its enabling statute are stated as; the prevention and detection of organised crime, the investigation of money laundering, human trafficking, prohibited cyber activity, tax fraud, and other serious offences as well as monitor activities connected with the said offences. . That at all times material to the instant application, Respondent's statutory functions initially included the investigation of offences that involve financial or economic loss to the Republic or any State entity or institution in which the State has financial interest, but that this object and/or function was specifically taken away by the Office of Special Prosecutor Act 2017 (Act 959) by virtue of which statute, offences relating to suspected corruption and corruption-related offences under the Public Procurement Act, 2003 (Act 663) and generally corruption and corruption-related offences under the Criminal Offences Act, 1960 (Act 29) involving public officers must now be statutorily investigated and prosecuted by the Office of the Special Prosecutor and no other institution. Page 3 of 910, That be that as it may, from about the beginning of the month of November 2019, Respondent has invited officials of the Audit Service ["the Service”] and myself to Respondent's offices consequent upon investigations Respondent has purportedly commenced into procurement breaches by the Service allegedly committed during the purchase of some vehicles by the Service sometime in the year 2018 and that my present deposition is evidenced by a letter dated the 7 day of November 2019 exhibited hereto and marked A. 11. That although from my depositions in paragraphs 8 and 9 above, it is obvious that Respondent has no statutory mandate to investigate any offences relating to suspected corruption and corruption-related offences under the Public Procurement Act, 2003 (Act 663) and generally corruption and corruption-related offences under the Criminal Offences Act, 1960 (Act 29) involving public officers, which offences by virtue of the Office of Special Prosecutor Act 2017 (Act 959) have now been placed squarely within the province of the Office of Special Prosecutor to investigate, I obliged Respondent’s invitation out of respect for another statutory institution which, like the Service, is acting in the interest of our dear nation the Republic of Ghana. 12, That I repeat paragraph 11 of my affidavit and depose further that in honouring Respondent's invitation, I took the view that Respondent may have some statutory and/or legal basis [of which I may be unaware] for inviting the Service and myself to their offices for purposes of investigating offences under the Public Procurement Act, 2003 (Act 663) or that some other offence sprung from the alleged breach of the procurement rules, for which reason I visited Respondent's office to enable me advise myself as to the lawfulness or otherwise of Respondent’s invitations to me and officials of the Office. Page 4 of 913. That having attended Respondent’s office, listened to and interacted with Respondent, I reached the conclusion especially after Respondent purportedly cautioned me that Respondent exceeded its statutory mandate and acted plainly illegally when it [Respondent] invited officials of the Service and myself to assist in Respondent's investigations into procurement breaches by the Service allegedly committed during the purchase of some vehicles by the Service sometime in the year 2018. 14, That I have been advised by my lawyers and verily believe same to be true that Respondent has no statutory mandate to investigate the Service and myself either jointly or individually for any offences relating to breaches of the procurement laws of the Republic of Ghana such matters falling within the statutory province of the Office of the Special Prosecutor. 15. That accordingly, I have been advised by my lawyers and verily believe same to be true that Respondent’s decision to extract a caution statement from me and not stopping there, granting me bail are wrongful, illegal, null and void. 16. That my lawyers have advised me and I verily believe same to be true that as a statutorily established institution Respondent has a constitutional obligation to carry out its functions in accordance with the requirements of due process and administrative justice both of which requirements demand from Respondent without any derogation whatsoever that Respondent carry out its statutory functions in accordance with law, candor and good faith and also fairly and reasonably. 17, That from the facts recounted in my present aiffidavit, Respondent is clearly acting outside its constitutional obligation to act in accordance with the law in the discharge of its statutory functions and is clearly acting in bad faith the reason being that Page 5 of 919, having observed that Respondent acted outside its statutory mandate in its engagements with officials of the Service and myself, I dispatched a letter dated the 18" day of November 2019 to Respondent exhibited hereto and marked B, in which letter I drew Respondent’s attention to Respondent’s unlawful acts but that Respondent persisted in abusing its statutory powers by harassing officials of the Service and myself by threatening to exercise powers of arrest against us in respect of matters clearly falling outside its [Respondent's] statutory mandate. . That I have been advised by my lawyers and verily believe same to be true that Respondent is clearly acting with impunity and without regard for due process and the rule of law and above all my constitutional right to administrative justice. That accordingly, the grounds upon which I make this instant application for the enforcement of my fundamental human rights are as follows; i. Respondent acted ultra vires when it purportedly commenced investigations into the procurement of vehicles purchased by the Service sometime in the year 2018. ii, Respondent’s decision to investigate and purported investigation of the Audit Service and myself for breaches under the Public Procurement Act, 2003 (Act 663) allegedly committed in connection with the purchase of vehicles for the Service is wrongful and illegal for want of compliance with Respondent’s enabling statute. iii. Respondent’s purported investigation of the Audit Service for breaches under the Public Procurement Act, 2003 (Act 663) allegedly committed in Page 6 of 9connection with the purchase of vehicles for the Service in the year 2018 was initiated capriciously, arbitrarily and in bad faith. 20. That on the basis of the grounds deposed to in paragraph 19 above, I pray this Court for the following reliefs; t iii. A declaration thet Respondent has no statutory mandate to investigate the Audit Service for any breaches under the Public Procurement Act, 2003 (Act 663). A declaration that Respondent's decision to investigate and purported investigation of the Audit Service and myself for breaches under the Public Procurement Act, 2003 (Act 663) allegedly committed in connection with the purchase of vehicles for the Service is wrongful, illegal, null and void. A declaration that the caution administered to me, in the course of Respondent's purported investigation of the Audit Service for breaches under the Public Procurement Act, 2003 (Act 663) allegedly committed in connection with the purchase of vehicles for the Service in the year 2018 is wrongful, illegal, null and void. An order of injunction directed at Respondent, its officers, agents and all such persons however called from continuing with any investigations of the Audit Service and myself for breaches under the Public Procurement Act, 2008 (Act 663). An order of injunction directed at Respondent, its officers, agents and all such persons however called from purporting to and/or exercising any power(s) of Page 7 of 8arrest against myself and/or any official of the Audit Service in connection with — Respondent’s investigations of the Service for alleged breached under the Public Procurement Act, 2003 (Act 663). 21. WHEREFORE I depose to this affidavit in good faith. a eat ACCRA THIS: AY OF NOVEMBER 2019. DEPONENT. JOHN AHETOH COMMISSIONER FOR OATHS, P.O. BOX MP 1895 AND FOR SERVICE ON: THE ABOVE-NAMED RESPONDENT; THE ECONOMIC AND ORGANISED CRIME OFFICE, whose address for service is; BARNES ROAD, ADJACENT OLD PARLIAMENT HOUSE, HIGH STREET ACCRA. 1, THE ATTORNEY-GENERAL, ATTORNEY-GENERAL'S DEPARTMENT, MINISTRIES, ACCRA, Page 8 of 9Page 9 of 9IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, {HUMAN RIGHTS DIVISION) ACCRA - A.D. 2019. SUIT NO. .... IN THE MATTER OF THE ECONOMIC AND ORGANISED CRIME OFFICE ACT, 2010 (ACT 804). AND IN THE MATTER OF AN APPLICATION BY THE AUDITOR GENERAL OF THE REPUBLIC OF GHANA FOR THE ENFORCEMENT OF HIS FUNDAMENTAL HUMAN RIGHTS PURSUANT TO ARTICLES 23 AND 33(1) OF THE 1992 CONSTITUTION OF THE REPUBLIC OF GHANA. BETWEEN THE AUDITOR - GENERAL, AUDIT SERVICE, GA - 110-8787, MINISTRIES, ACCRA. ine APPLICANT. AND THE ECONOMIC AND ORGANISED CRIME OFFICE, BARNES ROAD, ADJACENT OLD PARLIAMENT HOUSE, HIGH STREET, ACCRA. ie RESPONDENT. CERTIFICATE OF IDENTIFICATION OF EXHIBITS. This is to certify that the documents exhibited to the affidavit in support of motion deposed to by DANIEL DOMELEVO hereto and marked A and B are the documents mentioned in the affidavit, the details of which documents are as follows: 1. Respondent's letter to Applicant dated November 7, 2019 and marked A. 2. Applicant's letter to Respondent dated 18 November 2019 and marked B. BEFORE ME fTHIS IS EX! BIT / DOCUMENT MARKED... “sss REFERRED TO THE AFFIDAVITS SWORN AT ACCRAREPUBLIC OF GHANA THE AUDITOR-GENERAL My Ref. No: tity Bes nM 96, est, AGIOUIS2G eyes orate Far SSIES 1g ‘Your Ref. No: ‘Webette: wir ghaua.org November... 249. THIS IS EXHIBI i THE ACTING EXECUTIVE DIRECTOR MARKED ....P, ' peel THE ECONOMIC AND ORGANISED CRIME OFFICBE re WiTS SWORNATACER P.O. BOX AC 80 Tas AV OF LL, 20... O09 2M, 20.43, BREACH BY GHANA AUDIT SERVICE (GAS) You would recall that for close to four weeks now, your office has been inviting officers from the Ghana Audit Service including myself on the premise ~ of investigating alleged procurement breaches in respect of some vehicles procured by GAS in 2018 for the effective conduct and delivery of audit activities. I was personally invited by a letter dated November 7, 2019 which invitation I honoured out of respect for your office on 14 November, 2019 only to be cautioned by your officers and asked for a caution statement which I gave. I had had to be granted bail - thanks to my driver - before I was allowed to leave your premises. A careful reading of your enabling law, the Economic and Organised Crime Act, 2010 (Act 80.4) as amended by the Office of Special Prosecutor Act, 2017 (Act959) and from discussions with my lawyers, I am of the firm belief that your office does not have the mandate to investigate any breaches under the public procurement Act. In fact, I am advised that the relevant provision in Act 959 which amended Act 804 is section 80 and therein, your office’s mandate to investigate corruption and corruption related offenses, which has been defined to include p-ocurement breaches, has been taken away. Thus, this power your office purports to exercise now has been effectively taken away by the amendment contained in section 79 of Act 959. This clearly means that your office does not have the jurisdiction to investigate corruption related offences which has been defined in Act 959 to include breaches of the Public Procurement Act. It is quite bizarre and unfathomable why your office would purport to be investigating procurementbreaches when and in fact it does not have any legal authority to do so unless there is any hidden or ill motives behind your actions. Whereas staff of the Ghana Audit Service and I are ready to submit ourselves to investigation by the appropriate authorities, | am advised that you have no basis investigating or continuing any further investigations into any such alleged procurement breach as same is not part of the legal mandate of your office. I am by this letter asking you and your office to immediately stop the illegal and unlawful investigation of the alleged procurement breach and render an unqualified apology to me and Staff of the Ghana Audit Service within five (5) working days from the date of receiving this letter. Unless and until your office is able to show clearly where your mandate and jurisdiction to investigate any procurement breaches is coming from, any continued or further investigation by your office after the receipt of this letter will be fiercely contested, and my lawyers are already in the known and copied in this letter. Yours faithfully, DANIEL YAW DOMELEVO AUDITOR GENERAL OF GHANA CC: Hon Minister of Justice and Attorney General The Ministry of Justice, Accra ‘Nana Antwi Deputy Executive Director The Economic and Organised Crime Office Thaddeus Sory ESQ. Messrs Sory @Law HINo. 42™ Close Boundary Road Extension East Legon Accra