Bertram Mekwunye V Director Of Audit (W. N.) (1967) LLJR-SC

Bertram Mekwunye V Director Of Audit (W. N.) (1967)

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BAIRAMIAN, J.S.C. 

The Director of Audit surcharged an amount of £1,210-10s-11d upon Bertram Mekwunye, who appealed under section 207 of the Local Government Law (cap 68 in the 1959 Laws of the Western Region of Nigeria) to the High Court; there he failed and then lodged a notice of appeal to the Supreme Court. The respondent (namely the Director of Audit) objects in limine that Mekwunye has no right of appeal against the decision of the High Court.

Section 207 of that law provides as follows:

“207 (1) Any person who is aggrieved by a decision of the auditor on any matter with respect to which he made an objection at the audit and any person aggrieved by a disallowance or surcharge made by the auditor may, where the disallowance or surcharge or other decision relates to an amount not exceeding two hundred pounds, appeal to the Minister, and may in any other case appeal to the High Court: Pro-vided that any appeal under this section shall be lodged by the person aggrieved by the decision, disallowance or surcharge, within thirty days of the decision or disallowance, or of the making of the surcharge, as the case may be.

(2) The High Court or the Minister on such appeal shall have power to confirm, vary, or quash the decision of the auditor, and to remit the case to the auditor with such directions as the High Court or the Minister thinks fit for giving effect to the decision on appeal.,

(3) Where an appeal is made to the Minister under this section, he may at any stage of the proceedings state in the form of a special case for the opinion of the High Court any question of law arising in the course of the appeal, but save as aforesaid the decision of the Minister shall be final.”

The argument for the respondent is that as no further appeal to the Supreme Court is provided for in that Law, one has to look at section 177 of the 1963 Constitution of the Federation and see whether such an appeal lies. If the Director of Audit is a court, then the argument for him is that the case would fall under sub-section (4)(c), which provides for an appeal by leave of the High Court or of the Supreme Court from-

“(c)decisions in any civil or criminal proceedings in which an appeal has been brought to the High Court from some other court.”

Counsel for the appellant does not claim that the Director of Audit is a court, and does not rely on that provision. One of his submissions is that as section 207 of the Local Government Law states that the Minister’s decision on an appeal to him shall be final, but does not state that the High Court decision shall be final, that Law did not intend it to be final but left it open to appeal. This argument presupposes that an appeal automatically lies from any decision of any court except where it is excluded. But that is not the law: it is trite that all appeals exists merely by statute, and that where no provision is made for an appeal to lie from a decision of a court its decision is taken to be final: see Moore v. Tayee 2 W.A.C.A. 43 at page 44, and Onitiri v. Benson (1960) 5 F.S.C. 150 at page 155. That is why, for example, in regard to High Court decisions, the cases in which an appeal shall lie are set out in section 117 of the Constitution.

The other submission for the appellant is that the decision of the High Court in the present case was a decision at first instance, and that an appeal from it lies by virtue of paragraph (a) in subsection (2) of section 117 of the Constitution. The provision is that an appeal shall lie as of right from:-

“(a)final decisions in any civil proceedings before the High Court sitting at first instance.”

The argument is that as the Director of Audit is not a court, the proceedings in the High Court in this case were the first proceedings in a court and may be looked upon as being proceedings in the High Court at first Instance. One cannot get away from the language of section 207 of the Local Government Law, which speaks in subsection (1) of an “appeal to the High Court” from the auditor’s decision, when it involves more than two hundred pounds, and goes on in subsection (2) to confer powers on the High Court which are plainly of an appellate nature.

In addition to the arguments for the parties, the Court had the benefit of hearing Dr. Elias, the learned Attorney-General of the Federation who referred to Halsbury’s Laws of England (3rd edition), volume 9, page 342, and to Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (1931) A. C. 275, on what is a court, where the Privy Council enumerated some negative propositions on the subject. Dr. Elias suggested that it was a mistake to regard the auditor as a court on the ground that he could, under section 204 of the Local Government Law, hear evidence on oath  which had inclined the learned counsel for the respondent to think, at first, that the auditor might be regarded as a court. From page 297 of the Privy Council decision it is clear that a tribunal is not necessarily a court in the strict sense because it hears witnesses on oath. We are in agreement with Dr. Elias that the respondent was not a court. (We need not consider whether he was a tribunal.)

Dr. Elias also referred to paragraph (f) in subsection (2) of section 117 of the Constitution which states that an appeal shall lie as of right in:-

“(f) such other cases as may be prescribed by any law in force in the territory”-

and pointed out that there was no provision in section 207 of the Local Government Law for an appeal to the Supreme Court. The Court referred to other instances, e.g. the Registration of Titles Act (1958 Laws of the Federation) which provides in section 98 for appeal from the High Court decision given on appeal from the Registrar of Titles. In the present case more than a thousand pounds is involved: there are appeals for very much less, but it is a question for the legislative authorities whether an appeal from the High Court (or from the Minister)should be provided for. The Supreme Court in the present case is only concerned with deciding whether the appeal from the High Court can be entertained; in our view it cannot be.

Before concluding this judgment we should like to note that Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (supra) is referred to in Rola Co. (Australia) Proprietary Ltd. v. The Commonwealth and another (1944) 69 C.L.R. 185, which discusses at length the attributes of a court and may furnish more guidance when any similar question arises hereafter.

The appeal from the decision dated 6th August, 1964 of the High Court sitting at Asaba in case No. Bit/112A/62 is struck out with twenty-five guineas costs payable to the respondent.


Other Citation: (1967) LCN/1371(SC)

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