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OKON OWON
V.
ETO NDON AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
25TH DAY OF MAY, 1954
APPEAL NO. 65/1953
2PLR/1954/69 (WACA)
OTHER CITATION(S)
2PLR/1954/69 (WACA)
(1954) XIV WACA PP. 529-532
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTION, P.
DE COMARMOND, Ag. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
(CONSOLIDATED)
OKON OWON, FOR HIMSELF AND ON BEHALF OF AMAMONG, OKOBO – Appellants
AND
ETO NDON AND OTHERS OF OKOPEDI, OKOBO – Respondents
AND
OKON OWON, FOR HIMSELF AND AS REPRESENTING THE PEOPLE OF AMAMONG, OKOBO – Appellants
AND
CHIEF AWA UKPONG AND OTHERS OF OKOPEDI VILLAGE, OKORO – Respondents
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ORIGINATING COURT(S)
Appeal by a party in consolidated suits against the judgment of Palmer, J., sitting in the Supreme Court of the Calabar Judicial Division
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REPRESENTATION
A. Okon — for Appellants
E. E. E. Anwan — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Claim for a declaration of title to the same piece of land — Resolution of boundary disputes through a panel of referees — Report arising therefrom — How treated — Legal effect
ALTERNATIVE DISPUTE RESOLUTION –HYBRID PROCESSES:– Reference — Proceedings before referees not formally admitted in evidence — Court treating reference as arbitration — Supreme Court (Civil Procedure) Rules, Order 43, rules 1, 2, 9, and 10 — Legal effect
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CASE SUMMARY
The Court may in appropriate circumstances order any question or issue of fact to be investigated before a referee (rule 1 in Order 43) and shall specify whether the referee is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his investigation (rule 2); “the proceedings and report in writing of the referee shall be received in evidence in the case unless the Court may have reason to be dissatisfied with them, and the Court shall have power to draw such inferences from the proceedings or report as shall be just” (rule 9); and the Court “shall pass such ultimate judgment or order as may appear to be right and proper in the circumstances of the case” (last part of rule 10 in Order 43).
The above appellants were plaintiffs in one suit and defendants in the other, which suits were consolidated. Each party claimed a declaration of title to the same piece of land. By consent “the issue between the parties as to the boundary between them” was “referred to a panel of referees” who were ordered to report. By direction of the Judge the registrar sent the parties “the findings of the arbitrators appointed by this Court to arbitrate on the above-named suit”; they were two to one in favour of the respondents.
At a later day the case was called; the appellants asked for an adjournment to get a copy of the proceedings before the referees; for the respondents it was submitted that the findings of the referees as to the boundary disposed of the case; the Judge refused an adjournment and granted a declaration and injunction in favour of the respondents in their suit and dismissed the suit of the appellants.
The appellants argued on appeal (a) that the proceedings and report of the referees were not received in evidence as required by Order 43, rule 9, and (b) that the findings of the referees did not dispose of the matter: the claim of the respondents was for a declaration of title on which they had not given evidence, nor was there anything to show why the referees or the Court preferred their claim.
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DECISION(S) FROM THE CAUSE(S) OF ACTION
Held (allowing the Appeal; and remitting the case for re-trial) that:
1. The reference had been regarded and treated by the Judge as an arbitration, which went beyond the authority of the rules.
2. There was nothing either in the findings of the referees or the judgment of the Court to indicate why the case of one side was accepted rather than the other.
Obiter: The proceedings before the referees and their report ought to have been formally admitted in evidence.
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MAIN JUDGMENT
The following judgment was delivered:
FOSTER-SUTTON, P.
This is an appeal from a judgment of Palmer, J., sitting in the Supreme Court of the Calabar Judicial Division.
The appellants are plaintiffs in Suit No. C/2/1943 and defendants in Suit No. C/14/1947. Both actions were commenced in the Native Court of Okobo; both were transferred, at the instance of the plaintiff in each suit, to the Supreme Court, under the powers conferred by section 25(1)(c) of the Native Courts Ordinance, 1933 (now section 28(1)(c) of the Native Courts Ordinance (Cap. 142) ), and the plaintiffs in each suit were asking for a declaration of title to the same area of land, although there was a dispute as to the name of it.
By consent the two actions were consolidated, and again by consent, “the issue between the parties as to the boundary between them” was “referred to a panel of referees” and the panel was ordered to report back to the Court. This it did, and the parties were notified of the “Finding”, by the Registrar of the Supreme Court Registry, Calabar, on the 7th August, 1952, who commenced his letter in the following terms: “I am directed by the Honourable the Puisne Judge to append hereunder for your information the findings of the arbitrators appointed by this Court to arbitrate on the above named suit”, and he then set out the “Finding”. Two of the members of the “panel” found in favour of the boundary contended for by the respondents and the other member found in favour of that contended for by the appellants.
The matter again came before Palmer, J., on the 6th October, 1952, when counsel for the respondents, that is to say the defendants in Suit No. C/2/1943, applied for judgment “in terms of the referees’ report”. The appellants’ counsel stated that no copy of the proceedings before the referees had been supplied, and he applied for an adjournment to enable the appellants to obtain a copy. Respondents’ counsel then submitted that the “findings of referees as to boundary disposes of plaintiffs’ case”, whereupon the learned trial Judge delivered the following judgment: “Both parties were notified of the findings of the referees on 7th August. Since then the plaintiffs have not applied for a copy of the proceedings and I see no reason to grant any adjournment. There will be a declaration and injunction in terms prayed in Suit C/14/1947. In case C/2/1943 there must be judgment for defendants. Costs to be taxed.”
The appellants’ counsel made two submissions, firstly, that the trial was irregular and unsatisfactory because the provisions of rule 9, Order 43, of the Supreme Court Rules were not complied with in that the proceedings and report of the referees were not received in evidence as required by the rule, and the learned trial Judge erred, therefore, in basing his judgment on the referees’ report, and secondly, that the trial Judge misdirected himself in accepting the contention of respondents’ counsel that the findings of the referees disposed of the matter before the Court because the claim was for a declaration of title, that respondents had not given any evidence to discharge the onus which was upon them of proving their title, and there is nothing to indicate that the learned trial Judge considered the proceedings and report of the referees or why he, and the referees, chose to prefer the respondents’ claim to that of the appellants.
The respondents’ counsel contended that the record before us does not disclose the whole of what occurred, that it was not until it appeared clear that the only issue in the case was which boundary was the correct one, the Northern or Southern, that the reference was made. He submitted that there is some indication in the referees’ note of inspection as to why they preferred one rather than the other, and that the respondents gave traditional evidence as well as factual evidence regarding the boundary, before the referees. Finally, he urged that there had been a satisfactory adjudication.
Order 43, rule 9 reads as follows: “The proceedings and report in writing of the referees shall be received in evidence in the case unless the Court may have reason to be dissatisfied with them, and the Court shall have power to draw such inferences from the proceedings or report as shall be just”, and rule 10 of the same Order provides, inter alia, that the Court “shall pass such ultimate judgment or order as may appear to be right and proper in the circumstances of the case “.
From a perusal of the original documents contained in the Court file of this case it would appear that the “Finding” of the referees was the first document to be transmitted to the Supreme Court, Calabar, and that the proceedings, that is to say the notes taken of the evidence given by witnesses called by both sides, was at a later date similarly transmitted.
The rule in question requires that the proceedings and report in writing of the referees shall be received in evidence, and although I personally have no doubt that the learned trial Judge did peruse them, apart from the Registrar’s letter of 7th August, 1952, already referred to, and the reference in the judgment to the plaintiffs’ failure to apply for a copy of the proceedings, there is no indication that the report and proceedings were “received in evidence”. There can be no doubt that the proceedings and report ought to have been formally admitted in evidence, but since it is clear that the report and proceedings were transmitted to, and were before the Court, if this complaint had been the only one I should not have felt disposed to interfere with the decision appealed from. In this connection I feel constrained to observe that although there would appear to be no excuse for the plaintiff’s failure to apply for a copy of the proceedings, the defendants would have been better advised not to have taken advantage of the position by snatching a judgment.
I now come to the second point raised by counsel for the appellants. Rule 1 of Order 43, under which the reference was made, enables the Court in any cause or matter requiring any prolonged examination, which cannot in its opinion, having regard to the business before it, conveniently be made by the Court in the usual manner, to order any question or issue of fact to be investigated before a referee. Rule 2 of the Order requires the Court to furnish the referee with such part of the proceedings and such information and detailed instructions as may appear necessary for his guidance, and provides that such instructions shall specify whether the referee is merely to transmit the proceedings which he may hold on the enquiry, or also to report his own opinion on the point referred for his investigation.
From the nature of the order making the reference, the terms of the Registrar’s letter of 7th August, 1952, and the judgment, it would appear that the reference was regarded as an arbitration and so treated. In other words that the Court delegated to the panel of referees its function of determining the substantial issue in the case, that is to say which party was entitled to a declaration of title. I am in no doubt that the procedure adopted goes beyond that authorised by the Order and rules under which the Court purported to act.
Moreover, there is nothing in the “Finding” of the referees or in the judgment of the learned trial Judge indicating why the case of one side was accepted rather than the other.
In these circumstances I am of the opinion that the trial cannot be regarded as satisfactory, and I would, therefore, allow this appeal with costs, set aside the judgment appealed from, and remit the case to the Court below for re-trial before another Judge. The costs of the abortive trial to abide the event of the new trial. I reach this conclusion with regret since Suit No. C/2/1943, has already been before this Court on appeal when a new trial was also ordered.
The appellants’ costs are fixed at £43.
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DE COMARMOND, AG. C. J.
I concur.
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COUSSEY, J. A.
I concur.
Appeal allowed; case remitted for re-trial.