Administrator-General v Biakieu (CIV APP 6 of 1972) [1972] SLCA 1287 (3 November 1972)

5 10 15 20 25 SECTION 23 THE AFRICAN LAW REPORTS ADMINISTRATOR-GENERAL v. BIAKIEU Court of Appeal (Browne-Marke, Cornelius Harding and Percy Davies, JJ. A.): November 3rd, 1972 (Civil App. No. 6/72) [ 1) Civil Procedure-appeals-appeals against order for costs-leave to appeal to Supreme Court against order for costs may be granted when question of public importance involved: Although an appeal against an order to pay costs will not usually be entertained by the Supreme Court, leave to appeal may be granted when a question of public importance is involved, as when a public officer is ordered personally to pay the costs of pro­ ceedings taken against him in his official capacity (page 156, lines 22-28). [ 2] Civil Procedure-appeals-leave to appeal-objection can be raised at any time before final leave granted: The respondent to an application for leave to appeal may raise objections at any time before final leave is granted (page 156, lines 12-13). [ 3] Civil Procedure-costs-appeals against order for costs-leave to appeal to Supreme Court against order for costs may be granted when question of public importance involved: See [ 1] above. [ 4] Civil Procedure-pleading-objections-objection to application for leave to appeal can be raised at any time before final leave granted: See [2] above. [ 5] Courts-Supreme Court-leave to appeal-leave to appeal against order for costs may be granted when question of public importance involved: See [1] above. The applicant applied for leave to appeal to the Supreme Court. The Administrator-General sought leave to appeal against an order of the Court of Appeal which stated that-"costs are to be paid by the Administrator-General personally .... " Conditional 30 leave was granted and the conditions were subsequently fulfilled. In the present stage of the proceedings the appellant sought final leave to appeal, but the respondent objected that leave to appeal should not be granted as the appeal was concerned only with costs and it was not alleged that the court erred in awarding costs. He 35 also contended that he was not barred from raising objections to the application at any time before final leave was granted. The Administrator-General contended that a question of public importance was involved since he had been ordered personally to pay the costs of proceedings taken against him in his official 40 capacity and that final leave should therefore be given. The court gave final leave to appeal. 154 ADMOR.-GEN. v. BIAKIEU, 1972-73 ALR S.L. 154 C.A. case referred to: (1) Mussumat Keemee Baree v. Latchman-Das Narrain-Das (1837), 1 Moo. Ind. App. 4 70; 18 E.R. 188, distinguished. Legislation construed: Courts Act, 1965 (No. 31 of 1965) s.70(2), as amended: " ... an appeal shall lie from decisions of the Court of Appeal ... with leave of the Court of Appeal in the following cases- ( a) ... where in the opinion of the Court of Appeal the question involved in the appeal is one that by reason of its general or public importance or otherwise, ought to be submitted to the Supreme Court .... " Procedure in Appeals to the Supreme Court (Adaptation) Order, 1971 (P. N. No. 34 of 1971), s.5: The relevant terms of this section are set out at page 155, line 39- page 156, line 11. C.N. Rogers- Wright for the applicant; Berthan Macaulay, Q.C., for the respondent. BROWNE-MARKE, J.A., delivering the judgment of the court: On November 1st, 1972, Mr. Rogers-Wright moved this court on behalf of the applicant, the Administrator-General, in this matter, for an order that he should have final leave to appeal to the Supreme Court against an order of the Court of Appeal dated June 23rd, 1972. The applicant stated in para. 3 of his affidavit sworn on October 23rd, 1972, that the conditions fixed by the court had all been fulfilled. Mr. Berthan Macaulay, Q.C. who appeared with Miss Dworzak for the respondent made the following points: (a) That objection could be raised at any time before final leave was granted. (b) That according to the headnote in the case Mussumat Keemee Baree v. Latchman-Das Narrain-Das (1) the Judicial Committee would not entertain an appeal merely for costs. (c) That no allegation was made that the court erred in awarding costs. Conditional leave was granted on October lOth, 1972. The application for that order was pursuant to s.5 the Procedure in Appeals to the Supreme Court (Adaptation) Order, 1971 which deals with conditions on which leave to appeal is to be granted, and states: "Leave to appeal to the Supreme Court in pursuance of the provisions of any law relating to such appeal shall in the first instance be granted by the Court only upon condition of 155 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS the appellant, within a period to be fixed by the Court but not exceeding three months from the date of the hearing of the application for leave to appeal, providing good and sufficient security, to the satisfaction of the Court, in a sum 5 not exceeding one thousand leones, for the due prosecution of the appeal and the payment of all such costs as may become payable to the Respondent in the event of the appellants not obtaining an Order granting him final leave to appeal or of the appeal being dismissed for non-prosecution, 10 or of th~ Supreme Court ordering the appellant to pay the respondent's costs of the appeal as the case may be." We are prepared to say that objection can be taken at any time before final leave is granted but on the second point raised by Mr. Berthan Macaulay, Q.C. that case is distinguishable from the 15 present one. In the matter before this court the application is for appeal against the order of this court made on June 23rd, 1972, which reads-' 'Costs are to be paid by the Administrator-General personally on solicitor and client basis here and in the court below." 20 The certificate of that order was annexed to the application on July 11th, 1972. The order was made for costs to be paid personally by the Administrator-General who is a public officer, and in our opinion in the interest of justice this application falls under s.70(2)(a) of 25 the Courts Act, 1965 which gives this court power to grant leave if in its opinion the question involved in the appeal is one that ought to be referred to the Supreme Court by reason of its general or public importance. The applicant states that the conditions laid down when con- 30 ditional leave was granted have been fulfilled and there is no affidavit in opposition. An order is hereby made granting final leave in terms of the motion. Order accordingly. 35 40 156