Appeal distinguished from a complaint of denial of administrative justice
An appeal, jurisprudentially, is a reconsideration of a case by a higher court or body using mainly the evidence that was initially examined by the first decision maker. See A/S Norway Cement Export Ltd v Addison [1974] 2 GLR 177. But, in the later example above, the aggrieved person was prevented from placing her evidence before the Auditor-General so an appeal will not be the appropriate remedy. The later situation falls well within the purview of the proper conduct of an administrative body and therefore Article 23 of the Constitution would apply. That, in our understanding, is the plaint of the applicant in this case and we find no policy reason to prevent the applicant from seeking remedy under Article 33 or even alternatively under the common law jurisdiction of the High Court to supervise administrative bodies.
Form of the hearing and the prospective effect of the right
We wish to say for the avoidance of doubt that this decision only upholds the right to prior hearing for a person who would be directly affected where the AG intends to disallow an item of expenditure or surcharge. However, as to the form the hearing should take, that is constitutionally in the domain of the Auditor-General to work out. Furthermore, in giving this judgment, we are not unmindful of its general effect and the fact of previous disallowances and surcharges by the Auditor General which may have been done without prior hearings. We see a number of disallowances and surcharges in the Audit Report involved in this case. We are however comfortable to give this judgment because, the maximum limitation period for bringing human rights actions in the High Court is stated in Rule 3 Order 67 of CI 47 to be six months which has long lapsed in relation to the Audit Report in question. Even if a person affected were to seek judicial review, that too by the provisions of Rule 3 Order 55 of CI 47 has a limitation period of six months. See also the Supreme Court case of Shitu Wabi & 76 Ors v Attorney-General; CA. J4/22/2022, unreported judgment dated 30th November, 2022. Therefore, essentially, this decision offers relief only to future subjects of disallowance and surcharge.
A decision to disallow an item of expenditure and surcharge a person directly affects that person's property rights and the right to prior hearing in those circumstances ought to prevail over the conveniences of the Auditor-General. Sections 17(5) & (6) of the Audit Service Act provide that; "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. (6) In proceedings for the recovery of that sum a certificate signed by the Auditor-General is prima facie evidence of the facts certified." By the above statutory provisions, a surcharge has the effect of a judgment of a court of law and can be enforced against the person surcharged without further proof. It is hard for us to accept that it can be lawful for a judgment to be given against any person without the person being given a hearing, but that is the import of the respondent's suggested interpretation of Article 187(7).
Consequently, for all the reasons explained above, we are of the firm opinion that the proper interpretation of Article 187(7) of the Constitution is to read into it the right of prior hearing in any person to be directly affected by the exercise of the power of disallowance and surcharge by the Auditor-General.
The first rule of interpretation of the Constitution, and indeed all statutes, which we have discussed earlier, is to give the words used their plain and ordinary meaning. In the provisions above, the power given to the Auditor General is to disallow "any" item of expenditure which is contrary to law. Any means any and there is no qualification of the type of items of expenditure that may or may not be disallowed. It is therefore unusual for the applicant to seek to argue that, if the item of expenditure is supplied by a private person, then the Auditor General's power does not extend to disallowing it. We completely reject this argument as it has no basis whatsoever.
Even if we consider the case of surcharge, the enactment uses the words "the person" and "any person" as those that may be surcharged. If the intention of the framers of the Constitution was to limit the power to operate against only public officials, it would have simply said "the official" or "any official" in the public organisation being audited. It is true that the power of surcharge would be exercised upon the audit of public accounts and that the first line of actors in making expenditure would be public officials. But it is also true that private persons do business with government through its officials so if we talk of wrongdoing, negligence and misconduct, private persons who do business with government may be the ones who either by themselves or jointly with public officials, engage in the wrongdoing, negligence, or misconduct. A private person who claims for payment by a public entity for goods he did not supply and it is detected after he has been paid cannot say he did not commit wrongdoing or misconduct in relation to that payment. To accept the interpretation suggested by the applicant in this case would be to subvert the plain provisions of the Constitution.
In the case of the enactment in question here, the framers of the Constitution used the words; "the person" and "any person" thereby making it abundantly clear that it included both public officials and private persons. We must only give effect to the provision which undoubtedly is intended to cover all persons who may be implicated in wrong doing involving public money. Accordingly, we hold that the Auditor General's powers of disallowance and surcharge in Article 187(7) of the Constitution may be exercised in relation to private persons.
