Okon Owon V. Eto Ndon & Anor (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Practice and Procedure—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.

Facts

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); 11 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.

Held

The reference had been regarded and treated by the Judge as an arbitration, which went beyond the authority of the rules; nor was there anything 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.

Appeal allowed; case remitted for re-trial.