James Latunde Aderoku V. The United Afirica Co., Ltd (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Order to Referee.

Held: Owing to vagueness of the Order the Referee considered issues not properly within his scope; appeal allowed and case remitted to trial Court to deal with appellant’s claim for an account,

Caxton Martins for Appellant. J. C. Ticehurst for Respondent.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBB, C.J., SIERRA LEONE.

In this case a consent order was made on 10th February, 1937, referring it to a referee ” to investigate the plaintiff’s claim and report to this Court.” The terms of this order were not justified by the provisions of Order 28 Rule 1 which empowers the Court to order ” any question or issue of fact, or any question of account ” to be investigated before a referee, and where such an order is made it should specify clearly what particular questions of fact are to be investigated. As a result of the vagueness of the order the referee embarked upon what was really a trial of the action; this we think was wrong. The plaintiff claimed for use and occupation of his premises by the defendants. The referee dealt with this claim by merely saying that whatever was allowed would be less than the plaintiff owed to the defendants, but there is nothing to show us how he arrived at this conclusion, nor was there any plea in the nature of a set-off or counter-claim by the defendants. It now spears that the defendants were really in possession as mortgagees and their counsel admits that he cannot resist a claim for an account against them as such. In these circumstances the appeal is allowed and it is ordered that the judgment herein dated 2nd December, 1937, be set aside and that the case be remitted to the High Court of the Kaduna Division to deal with the plaintiff’s claim for an account, liberty being reserved to both plaintiff and defendants to amend their pleadings as they may be advised and upon such terms as to costs or otherwise as to the Court shall seem proper.

Inasmuch as the order of reference was made by consent and the claim does not ask for an account against the defendants as mortgagees, we think that the proper order as to costs is that each party should bear his own costs of the appeal, and that the costs in the Court below should be in the discretion of the trial Judge, and order accordingly.