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SUIT NO. S.C. 122/68.

3PLR/1968/23  (SC)






Lardner – for the applicant

Momoh – for the respondent



[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]



Civil action-Claim for professional fees by legal practitioner-Failure to serve bill of charges as required by s.11 of the Legal Practitioners Act, 1962-Effect.



COKER, J.S.C. (delivering the judgement of the Court):-

This ruling is concerned with an application by Sylvester Yesufu Eke for an order granting him:-

“leave to appeal to this honourable court against the judgement (in appeal No. M/13/67) of the High Court of Midwestern State, Nigeria, holding at Benin City given on the 31st January, 1968, or alternatively for an order granting extension of time to apply for such leave and for leave to appeal from the said judgement AND for such further order or orders as this honourable court may deem fit to make in the circumstances”.

On the 2nd July, 1968, counsel on behalf of the applicant moved the court in those terms. The application is supported by a number of affidavits sworn to by the applicant and/or his solicitor stating the facts relied upon for the application and exhibiting some documents. The documents consist of the judgement of the High Court which it is sought to appeal against, the grounds of appeal to the High Court and the proposed grounds of appeal to this court. The application was opposed by the learned acting Principal State Counsel, Midwestern State on the ground that the applicant has got no right of a further appeal from the High Court to this court.

The facts disclosed by the affidavits are to the effect that pursuant to the provisions of the Statutory Corporations (Debtors) Edict, 1966, of the Midwestern State, the auditor had issued a certificate in the form, provided in the Schedule to that Edict showing that the applicant was indebted to the Midwestern Nigeria Development Corporation in the amount of £21,497.10s. The applicant, apparently not satisfied with the findings of the auditor, had appealed to the High Court as provided for in the Edict. On the 31st January, 1968, the High Court, Midwestern State, (Irikefe, J.) dismissed the appeal. Against this dismissal the applicant now seeks to appeal. He had applied to the High Court for leave to appeal to this court, but his application had been refused. He has applied to us for leave to appeal to this court.

In considering whether or not to exercise our discretion to grant the applicant’s prayer it is necessary, among other things, to consider whether or not there was any right of appeal to this court. Such indeed was the contention of counsel for the respondents. The provisions for appeals are contained in sec-tion 8 of the Statutory Corporations (Debtors) Edict, 1966, which reads as follows:-

“8. (1) any person who is aggrieved by the decision of the auditor may within fifteen days of the said decision appeal to the High Court.

(2)     Any person desiring to appeal against the decision of the auditor shall commence his appeal by filing in the appropriate court a notice of appeal in the form set forth in Form II of the third Schedule to this Edict.

(3)     The High Court may, in the exercise of its appellate jurisdiction:-

(a)     Vary or reverse the decision of the auditor if, in the opinion of the court the auditor erred by rejecting the debtor’s surcharge or falsification of the Corporation’s account, or

(b)     Remit the case to the auditor with such directions as the justice of the case may require.

(4)     The decision of the High Court shall be final”.

Section 8 (4) of the Edict clearly stipulates that a decision of the High Court on appeal in a matter covered by the Edict shall be final. Learned counsel for the applicant submitted that the provisions of section 8 (4) of the Edict cannot and are not intended to nullify the right of appeal provided by section 117 (4) (c) of the Constitution of the Federation of Nigeria. We are of the view that the argument is misconceived. That section gives a right of appeal to this court with the leave of the High Court or the Supreme Court from any decisions of the High Court in which an appeal has been brought to the High Court from some other court. In Mekwunwe v. Director of Audit, Western Nigeria, S.C. 364/65, decided on the 27th June, 1967, construing a similar provision, this court held in effect that section 117 (4) (c) confers a right of further appeal only where the High Court had given a decision on appeal from some other court. It is therefore necessary in order to come within that section of the Constitution that the matter appealed to the High Court should have come from some other court. In this case the proceedings began with a certificate issued by the Director of Audit in pursuance of section 5 (1) of the Edict. Counsel for the applicant had suggested that the pro-visions of the Edict when read together would give the auditor the “trappings” of a court and that we should therefore hold (especially as a certificate of the auditor by virtue of section 5 (3) of the Edict is deemed to be effective as a judgement of a court of competent jurisdiction) that the right of appeal exercised to the High Court is one from some other court. We cannot acceded to this submission. All rights of appeals are statutory and unless an applicant can show that he has a right of appeal we do not see how one can be given to him, the more so as the construction which learned counsel had sought to put on section 117 (4) (c) is manifestly inconsistent with the plain reading of that section.

We have come to the conclusion that the applicant has no right of further appeal to this court, that section 8 (4) of the Edict is conclusive on the matter and that the judgement of the High Court on appeal finally determined the matter. This application must therefore be and it is hereby refused. The applicant will pay to the respondents the cost of the hearing fixed at 7 guineas.




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