JUDGMENT

PWAMANG JSC:

BACKGROUND OF THE APPEAL

My Lords, this case arose out of the exercise of the power of disallowance conferred on the respondent/respondent/respondent (the respondent) under article 187(7) of the Constitution, 1992, which provides that on the audit of any public accounts, the AuditorGeneral (AG) may disallow any item of expenditure which is contrary to law and surcharge the amount disallowed upon the person responsible for incurring the expenditure. It is further provided under Article 187(9) that a person aggrieved by a disallowance or surcharge by the AG may appeal to the High Court. In October, 2019, the applicant/appellant/appellant (the applicant) felt aggrieved by the respondent’s disallowance of its claims for payments for services it rendered to the Office of the Controller and Accountant General (the Controller).

However, the applicant did not seek redress through an appeal as provided for under Article 187(9) of the Constitution. It sought remedy by a motion filed pursuant to Article 33 of the Constitution, which provides for the Protection of Rights by the High Court. The ground for the motion was that the applicant’s rights to Administrative Justice guaranteed by Article 23 of the Constitution were violated by the respondent in the process of exercising its power of disallowance and it wanted the disallowance quashed.

The respondent objected to the procedure adopted by the applicant arguing that, since the Constitution as part of the provisions of Article 187 provided a remedy in the form of appeal, the applicant was not entitled to seek redress by any other procedure. The trial High Court upheld this objection and struck out the applicant’s motion saying its jurisdiction was not properly invoked. On an appeal, the majority of the Court of Appeal agreed with the High Court and dismissed the appeal stating that the applicant adopted a wrong procedure in seeking remedy. The dissenting Court of Appeal Judge however approved of the applicant’s invocation of Article 33 of the Constitution, and further held that the respondent indeed violated the Administrative Justice rights of the applicant and allowed the appeal.

Facts

The facts of this case are not subject to much controversy. The applicant at all times material was a computer software company that was engaged by the Controller in 2008 to provide it maintenance support for government’s Integrated Personnel Payroll Database (IPPD) at an annual fee. This