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L. A. LAWSON
V.
LOCAL AUTHORITY, ABA
THE WEST AFRICAN COURT OF LAGOS, NIGERIA
14TH DAY OF JULY, 1944
2PLR/1944/5 (WACA)
OTHER CITATION(S)
2PLR/1944/5 (WACA)
(1944) X WACA PP. 228 – 229
LEX (1944) – WACA PP. 228 – 229
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J.
BAKER, J.
BROOKE, J.
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BETWEEN:
L. A. LAWSON — Defendant-Appellant
AND
LOCAL AUTHORITY, ABA — Prosecutor-Respondent
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ORIGINATING COURT(S)
Appeal by the Defendant from the decision of the High Court, Calabar-Aba Division, dismissing his appeal from the Magistrate (Limited Powers), Aba.
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REPRESENTATION
N. G. HAY — for the Crown
LADIPO MOORE — for Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TAXATION AND REVENUE MATTERS — INCOME TAX:- Criminal prosecution for failure to pay income tax — Duty on prosecution to uphold fair hearing — Whether compromised where prosecution is both judge and prosecutor
CRIMINAL LAW AND PROCEDURE — FAIR HEARING:- Duty on prosecution to prove case — Trial by Magistrate (Limited Powers) who is also Local Authority at whose instance proceedings taken — Possibility of bias — Legal effect for competency of hearing
ADMINISTRATIVE AND GOVERNMENT LAW:- Tax administration and enforcement — Duty on administrative to act fair — Where administrative body is both judge and prosecutor — Legal implication for fair hearing rule
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CASE SUMMARY
The Defendant-Appellant was charged at the instance of the Administrative Officer qua Local Authority (the Tax Collection Authority) Aba, for failure to pay income tax, and tried by that Officer qua Magistrate (Limited Powers). His appeal to the High Court was dismissed.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal)—
That the proceedings were vitiated by the fact that the same person was both prosecutor and judge.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:
The Appellant was charged at the instance of the Local Authority (the Tax Collection Authority), Aba, in the Court of the Magistrate (Limited Powers), Aba with—
“Failing to pay £4 3s. 4d. 1943-44 Income Tax contrary to section 24 of Ordinance No. 4 of 1940”.
He was convicted and fined £10 or one month’s imprisonment in default. He appealed to the High Court of the Calabar-Aba Judicial Division which dismissed his appeal summarily under section 170 of the Criminal Procedure Ordinance. On appeal to this Court the Appellant relies on one ground of appeal only, viz. the undisputed fact that it was the same individual Administrative Officer who, in his capacity as Local Authority, instituted the proceedings, and, in his capacity as Magistrate (Limited Powers) tried the case.
The Appellant relies upon the maxim “Nemo debit esse Judex in propria sua causa” in contending that the proceedings are vitiated by the fact that the same person was both prosecutor and judge. We have no hesitation in upholding his contention. It is a fundamental rule both of natural justice and of the practical administration of justice that a person cannot be a judge in a cause wherein he is interested. There is a large number of English cases in which that rule has been followed and proceedings quashed owing to the possibility of bias. The nearest in point is R v. Milledge (4 Q.B.D.332), from which it is clear that the possibility of bias need not arise from personal interest, but may be due (as in the present case) merely to the dual capacity on, in which an individual is acting.
Here it was clearly the duty of the Administrative Officer in question to have decided, qua Local Authority, that there was a good case against the Appellant before instituting proceedings; having so decided it is obvious that he could not approach the trial of the case, qua Magistrate, with an entirely open and unbiased mind-though we think it right to state that the proceedings disclose no signs of actual bias.
For these reasons the conviction cannot be allowed to stand. We have carefully considered whether this is a proper case in which to exercise the power of ordering a retrial. But having regard to the facts that the tax has now been paid, and that the Appellant has been put to very considerable expense in taking his appeal to two Courts, in each of which he had perforce to engage different Counsel, in order to establish his right to a trial conducted in accordance with the fundamental principles of justice, we think it would be unduly harsh to order him to undergo a further trial.
The appeal is allowed, the finding and sentence of the Magistrate’s Court are reversed, and the Appellant is acquitted and discharged.
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