MRS. ANGELA OMOLARA BRANCO V. WEMABOD ESTATES LIMITED
(2011)LCN/4284(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of February, 2011
CA/L/543/09
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF RULES 2 & 6 OF ORDER 27 OF THE HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULES 2004 AS IT RELATES TO CIRCUMSTANCES WHEN A JUDGE ORDER A CAUSE OR MATTER OR ANY QUESTION OR ISSUE OF FACTS ARISING THEREIN, TO BE TRIED BEFORE AN OFFICIAL REFEREE OR OFFICER OF THE COURT
…order 27 of the High court of Lagos state (Civil Procedure) Rules 2004 provides for ISSUES, INQUIRIES, ACCOUNTS AND REFERENCES TO REFEREES. Rule 2 of the said order provides:- “2. In any legal proceeding, the Judge may at any time order the whole cause or matter or any question or issue of facts arising therein, to be tried before an official Referee or Officer of the Court, notwithstanding that it may appear that there is a special or other relief sought or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner.”Rules 6(1), (2) & 3 of Order 27 thereof state: 6(1) The report made by a referee in pursuance of a reference under this order shall be made to the Judge and notice thereof served on the parties to the reference. (2) A referee may by his report submit any question arising therein for the decision of the Judge or make a special statement of facts from which the Judge may draw such inferences as he deems fit. (3) On receipt of a referee’s report, the Judge may: (a) adopt the report in whole or in part; (b) vary the report; (c) require an explanation from him; (d) remit the whole or any part of the question or issue originally referred to him for further consideration by him or any other referee; (e) decide the question or issue originally referred to him on the evidence taken before him either with or without additional evidence. Clearly, the provisions in Order 27, Rules 2 & 6(3) of the High court of Lagos (civil Procedure Rules) 2004 are quite clear and unambiguous. They do not require any special canon of interpretation. The only task for this court is to give them their ordinary grammatical and usual meaning. The law is trite that where the words of a statute are clear and unambiguous, they should be given their ordinary and usual meaning. See Agbareh v. Mimra (2008) 2 N.W.L.R. (pt. 1071) 378; Abubakar v. Yar’ Adua (2008) 19 N.W.L.R. (Pt.1120) 1; Cuisin (Nig.) Ltd. v. I.G.P. (2008) 5 N.W.L.R. (Pt.1081) 546. It is instructive here that the motion which the Court below dismissed, was brought under order 27 of the said High Court Rules. As I understand the order, there is nothing to suggest that immediately a report from the Referee is received, it should be made the Judgment of the court. Rather order 27, Rule 3 thereof stipulates that on receipt of the referee’s report, the Judge may adopt the report in whole or in part meaning that the Trial Judge has discretion on what to do with the report. Rule 3(b) even states that the Judge may “vary the report. Again this means that the report is not sacrosanct as the Judge may even require more explanation from the referee. It is only when the Judge is satisfied that the report is in consonant with the evidence before him, that he can decide the case based on the said report as envisaged in sub paragraph (e) thereof . The opening sentence in Order 27 Rule 3 states:- ‘On the receipt of a referee’s report, the Judge may…” (italics mine for emphases) PER JOHN INYANG OKORO, J.C.A.
RULE OF INTERPRETATION:POSITION OF THE LAW WHERE THE WORDS OF A STATUTE ARE CLEAR AND UNAMBIGUOUS
The law is trite that where the words of a statute are clear and unambiguous, they should be given their ordinary and usual meaning. See Agbareh v. Mimra (2008) 2 N.W.L.R. (pt. 1071) 378; Abubakar v. Yar’ Adua (2008) 19 N.W.L.R. (Pt.1120) 1; Cuisin (Nig.) Ltd. v. I.G.P. (2008) 5 N.W.L.R. (Pt.1081) 546. PER JOHN INYANG OKORO, J.C.A.
INTERPRETATION OF STATUTE: IMPLICATION OF THE USE OF THE WORD “MAY” IN A STATUTE
The use of the word “may” is very instructive here. If the lawmaker had intended that the Judge should have no choice but to implement the report, the words “shall” or “must” should have been used as these words connotes mandatoriness. The use of the word “may” endows the Judge with discretionary powers and that is why sub paragraphs (a)-(e) give the trial Judge enormous discretion on what to do with the report. See In Re: Uba (2008) 7 N.W.L.R. (pt. 1085) 68; Olaniyan v. Oyewole (2008) 5 N.W.L.R. (pt. 1079) 114; Ogunshakin v. Ajidara (2008) 6 N.W.L.R (pt.1082) 1. PER JOHN INYANG OKORO, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
MRS. ANGELA OMOLARA BRANCO Appellant(s)
AND
WEMABOD ESTATES LIMITED Respondent(s)
JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): The grandfather of the Appellant Candido Da-Rocha entered into a lease agreement with National Bank of Nigeria Ltd for a term of 50 years commencing from 1st day of July, 1947 in respect of the property situate at No. 37 Marina, Lagos, known as Unity House. The interest of National Bank in respect of the lease was later transferred to the Respondent. The lease contains a clause which gives the Respondent the right to renew the lease for a period of 20 years after its expiration upon giving three months notice in writing to the Lessor. One of the terms in the lease is that the lessee shall pay the rent by yearly payment of Six Hundred pounds Sterling in advance. The rent payable for the renewal period was fixed for Eight Hundred pounds Sterling. By a letter dated 10th February 1997, the Respondent’s Solicitor, Dr. F. A. Ajayi SAN, gave the required Notice to renew the lease, stating that he was doing so upon the terms and conditions in the lease. Although the lease expired on 30th June, 1997, the cheques were forwarded to the Appellants sister only on 10th February, 1998 and they were in Naira converted on the basis of two naira (N2) to one Pound sterling. The Appellant’s sister rejected the cheques and forwarded them back to the Respondent’s Solicitor.
In an amended statement of claim, the Claimants, now Appellants claimed possession of the property aforesaid. At the pre-trial conference, the Pre-trial Judge, with the consent of the parties referred the following questions to the Multi-Door court House:
“(i) Whether subsequent to the expiration on 30th June, 1997 of the original 50 years lease dated 23rd June, 1947 between both Parties in respect of the demise premises, the Respondent validly exercised the contractual option in the original lease to renew the lease for a further term of 20 years.
(ii) Having regard to the answer to the first question (supra) whether the Respondent from 1st July, 1997 is in lawful occupation of the demised premises.”
The Multi-Door Court Judge, Candide-Johnson J. after a thorough consideration of the questions, found as follows: –
“In effect all said and told on the foregoing reasoning and analysis, the two questions that have arisen for my determination must both be answered in the negative to wit that Respondent has not validly exercised the option to renew the original 1947 lease and secondly that the Respondent from or since 1st July, 1997 is not in lawful occupation of the demised premises in the absence of a complete agreement.”
The report of the Multi-Door court Judge dated 3/4/06 was thereafter forwarded to the Pre-Trial Judge who, because the Respondent did not accept the Report had to make an order that the case be transferred to a Trial Judge with the consent of the Parties.
While the trial was on, the Appellant filed a motion on 19/2/09 claiming the following reliefs:-
i. An Order adopting the neutral evaluation report of the Lagos Multi-Door Court House with regard to the two questions posed for determination by Hon. Justice Ojikutu-Oshode with the consent and approval of the parties herein attached and marked Exhibit A in the Affidavit of Olugbenga Paseda.
ii. An order for judgment to the claimants in terms of the findings in the report”.
The learned trial Judge in its Judgment dismissed the Appellants motion on 9th June, 2009. Dissatisfied with the stance of the learned trial Judge, the Appellant filed Notice of Appeal on 22/6/09. The said Notice contains seven grounds of appeal erroneously numbered up to eight. There is no ground of appeal No.4 in the said Notice of Appeal.
Out of the seven grounds of appeal, the Appellant has distilled four issues for the determination of this appeal as follows:-
“(i) Whether the Learned Trial Judge in construing the motion which was brought under Order 27 Rule 2 and Rule 6(a) asking the Court to adopt the Report of the Referee and give judgment on its terms as an application that judgment by consent be given is right (Grounds 3, 5 & 7).
(ii) Whether the Learned Trial Judge was right in not adopting the report of the referee as a finding of the Court and give judgment on its terms (Grounds 6 & 8).
(iii) Whether the Learned Trial Judge was right by finding that the Appellant’s motion was brought after the Appellant had closed their case (ground 2).
(iv) Whether the Learned Trial Judge was right in laying emphasis on the fact that the Court Rules under which the motion was brought was not stated (Ground 1)”.
On the other hand, the Respondent has formulated one issue only for the determination of this appeal. The said lone issue states: –
“Whether or not the lower Court was right in its Ruling rejecting the Appellant’s application to abandon further hearing of a part-heard case and adopt as its judgment the non-statutory neutral evaluation by an Alternative Dispute Resolution Judge (Grounds 5, 6 &7)”.
From the facts and circumstance of this case, it appears to me that this appeal can conveniently and wholly be determined on the lone issue formulated by the Respondent which encapsulates issues one and two of the Appellant. I shall determine this appeal based on the said issue. What I am actually saying is that issues one and two in the appellant’s brief are the same, and are also in consonance with the lone issue in the Respondent’s brief.
In his submission, the learned counsel for the Appellant, Adegboyega Thompson Esq., contended that the Learned Trial Judge erred in law in not accepting Exhibit A as a finding of the court. Exhibit A is the findings and report of the Multi-Door court Judge. It was his further submission that the Multi-Door Court Judge being a Referee by the definition in order 27 Rule 2 of the High court of Lagos state (civil procedure) Rules, his findings on the question posed by the pre-Trial Judge should have been regarded as the finding by the Learned Trial Judge. That as there was no application for the variation of the Report in accordance with Order 27 Rule 4 of the Lagos state High court (civil procedure) Rules, the Court below ought to have adopted the Report and given judgment for the Appellant.
Contending further learned counsel submitted that the Learned Trial Judge completely missed the point when she agreed with the submission of the Respondent’s counsel that the grant of the application will amount to the Court abdicating its responsibility under the law. That the learned trial Judge did not consider the provision in order 27 Rule 6(3) (a) of the High Court (civil Procedure) Rules of Lagos State 2004.
Furthermore, learned counsel urged that since the Respondent did not pay his rent in advance as stipulated in the lease agreement as found by the Multi-Door court Judge and since the Appellant had served both “Notice to quit” and “Notice of owner’s intention to recover possession, on the Respondent, this court should make an order for possession relying on Section 15 of the Court of Appeal Act 2004 and the cases of Adejumo v. David Hughes & Co. (1989) 5 N.W.L.R. (pt. 120) 146; Okoya v. Santili (1990) 2 N.W.L.R, (pt. 139) 172; Adenle v. Olade (2002) 18 N.W.L.R. (pt. 899) 413 and C.G.G Nig. Ltd. v. Ogu (2005) 8 N.W.L.R. (pt. 927) 385.
Finally, learned counsel submitted that the Learned Trial Judge misconstrued the Appellant’s motion under Order 27 Rule 2 & 6(3) (a) of the Rules of the High Court of Lagos state as an application for consent judgment and that by so doing the decision of the Learned Trial Judge is perverse and as such ought to be set aside relying on the case of Udengwu v. Uzuegbu (2003) 13 N.W.L.R. (Pt.836) 136. He then urged the court to resolve the issues in favour of the Appellant.
In his response, the Learned Senior Counsel for the Respondent Dr. F. A. Ajayi, SAN submitted, though briefly, that although this matter went through the stage of neutral evaluation, it was eventually aborted as the Defendant rejected the adverse conclusion contained in the evaluation. Also, that within the meaning of Order 27 Rules 2 and 6(3)(a) of the Lagos State High Court (Civil Procedure) Rules there is no basis whatsoever for any view that an ADR Judge is an official referee therein contemplated. Learned Senior Counsel further submitted that since the Appellant had opened and closed her case, what is left is for the Respondent to defend and not to bring an application for the Learned Trial Judge to abdicate his responsibility contained in Section 6(6) (b) of the 1999 constitution of the Federal Republic of Nigeria.
It was the Learned senior counsel’s conclusion that the Appellant’s present appeal is based on arguments which are unprecedented, unconstitutional and totally devoid of merit on any ground, and so, should be dismissed.
As was rightly pointed out in his brief by the learned senior counsel, the practice of referring by the Judge of issues, inquiries and accounts to an official Referee for inquiry and report back is not new. For example, it was part of the PRACTICE OF THE SUPREME COURT OF ENGLAND (1964 Edition) under order 33 thereof. See Graham v. skipper 29 Ch. D., 566. Similar provisions have been in force in Nigeria since colonial days and an example is ORDER XLIII of the SUPREME COURT (CIVIL PROCEDURE) RULES at pp.71-72 of volume X of the Revised Laws of Nigeria, 1948 Edition. As I said earlier, this practice is not entirely new to our Laws and Procedure.
Thus order 27 of the High court of Lagos state (Civil Procedure) Rules 2004 provides for ISSUES, INQUIRIES, ACCOUNTS AND REFERENCES TO REFEREES. Rule 2 of the said order provides:-
“2. In any legal proceeding, the Judge may at any time order the whole cause or matter or any question or issue of facts arising therein, to be tried before an official Referee or Officer of the Court, notwithstanding that it may appear that there is a special or other relief sought or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner.”
Rules 6(1), (2) & 3 of Order 27 thereof state:
6(1) The report made by a referee in pursuance of a reference under this order shall be made to the Judge and notice thereof served on the parties to the reference.
(2) A referee may by his report submit any question arising therein for the decision of the Judge or make a special statement of facts from which the Judge may draw such inferences as he deems fit.
(3) On receipt of a referee’s report, the Judge may:
(a) adopt the report in whole or in part;
(b) vary the report;
(c) require an explanation from him;
(d) remit the whole or any part of the question or issue originally referred to him for further consideration by him or any other referee;
(e) decide the question or issue originally referred to him on the evidence taken before him either with or without additional evidence.
Clearly, the provisions in Order 27, Rules 2 & 6(3) of the High court of Lagos (civil Procedure Rules) 2004 are quite clear and unambiguous. They do not require any special canon of interpretation. The only task for this court is to give them their ordinary grammatical and usual meaning. The law is trite that where the words of a statute are clear and unambiguous, they should be given their ordinary and usual meaning. See Agbareh v. Mimra (2008) 2 N.W.L.R. (pt. 1071) 378; Abubakar v. Yar’ Adua (2008) 19 N.W.L.R. (Pt.1120) 1; Cuisin (Nig.) Ltd. v. I.G.P. (2008) 5 N.W.L.R. (Pt.1081) 546.
It is instructive here that the motion which the Court below dismissed, was brought under order 27 of the said High Court Rules. As I understand the order, there is nothing to suggest that immediately a report from the Referee is received, it should be made the Judgment of the court. Rather order 27, Rule 3 thereof stipulates that on receipt of the referee’s report, the Judge may adopt the report in whole or in part meaning that the Trial Judge has discretion on what to do with the report. Rule 3(b) even states that the Judge may “vary the report. Again this means that the report is not sacrosanct as the Judge may even require more explanation from the referee. It is only when the Judge is satisfied that the report is in consonant with the evidence before him, that he can decide the case based on the said report as envisaged in sub paragraph (e) thereof .
The opening sentence in Order 27 Rule 3 states:-
‘On the receipt of a referee’s report, the Judge may…”
(italics mine for emphases)
The use of the word “may” is very instructive here. If the lawmaker had intended that the Judge should have no choice but to implement the report, the words “shall” or “must” should have been used as these words connotes mandatoriness. The use of the word “may” endows the Judge with discretionary powers and that is why sub paragraphs (a)-(e) give the trial Judge enormous discretion on what to do with the report. See In Re: Uba (2008) 7 N.W.L.R. (pt. 1085) 68; Olaniyan v. Oyewole (2008) 5 N.W.L.R. (pt. 1079) 114; Ogunshakin v. Ajidara (2008) 6 N.W.L.R (pt.1082) 1.
The fact of this case discloses that when the Respondent refused to accept the conclusions of the Multi-Door Court Judge, the Pre-Trial Judge ordered that the matter should proceed to trial. It was in the middle of this trial that the Appellant filed the said motion.
The learned counsel for the Appellant, relying on the case of Udengwu v. Uzuegbu (supra) had urged this Court to hold that the Trial Judge misconstrued the purport of the application before him by holding that he was asked to enter a consent Judgment and as such the judgment is perverse. I think the learned counsel for the Appellant misconstrued the status of the Referee’s Report. That report does not become effective until it is considered and pronounced upon by the Judge trying the matter as the Rules even gave him the power to vary the report. If the Appellant did not construe the report as a consent Judgment, why then did he apply to the court below to enter Judgment for him in terms of the report? I seem to agree with the learned trial Judge, and I think I am right, that to have abandoned the hearing of the case to its logical conclusion would amount to abdicating her constitutional duties as enshrined in Section 6 of the 1999 Constitution of the Federal Republic of Nigeria.
A perusal of the record of appeal shows that the report of Hon. Justice S. B. A. Candide-Johnson, the ADR Judge of Lagos State and the Neutral Evaluator in this case, was made on 3rd April, 2006. The Appellant did not file his motion until 19th February, 2009. Between April 2006 and February 2009, the learned trial Judge had commenced hearing in the matter and the Appellant had given evidence before that court. I am yet to understand why the Appellant decided to file the motion midway into the trial of the case. The only guess one could make is that she did so because of her misunderstanding of the provision of order 27 Rules 2, and 6(3)(a) of the High Court (Civil Procedure) Rules of Lagos State 2004, under which the application was brought. My view is that, the Appellant ought to have allowed the court below to hear the matter to its logical conclusion and then decide what to do with the report of the Neutral Evaluator. It is only when the learned trial Judge fails to apply the report in accordance with the Rules that a party can appeal against the said Judgment.
In the circumstance of this case, I am unable to agree with the Appellant that failure to adopt the Report of the Referee as the Judgment of the court in the middle of the hearing of the case is against the meaning and tenor of order 27 Rules 2 & 6(3)(a) of the Rules of the Court below. This issue, as I have said, does not avail the Appellant at all. Accordingly, it is resolved against her.
On the whole, it is my well considered opinion that this appeal lacks merit and is hereby dismissed by me. I order that this suit be and is hereby remitted back to the Lagos State High court for continuation of hearing to its logical conclusion by Inumidum Akande J. who was hearing this matter when it came on appeal. Where however any of the parties objects to her hearing the matter, it should be assigned to another Judge by the chief Judge of Lagos State. I shall make no order as to costs.
ADZIRA GANA MSHELIA, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother Okoro, J.C.A just delivered. I completely agree with his reasoning and conclusion that the appeal is devoid of merit and ought to be dismissed. My learned brother has adequately considered the sole issue raised in this appeal. I only wish to add few words for the purpose of emphasis. The provisions of order 27 Rule 5 (1) and (2) of the High Court of Lagos State (Civil Procedure) Rules, 2004 reproduced in the lead judgment is clear and unambiguous. It is trite law that where the words of a statute are clear and unambiguous, they should be given their ordinary and usual meaning. See: Aebareh v. Mimra (2008) 2 NWLR (Pt 1071) 378. A careful reading of Order 27 referred to showed that the judge has discretion to adopt in whole or in part the referees report. The judge also has discretion to vary the said report. I agree with my learned brother that under Rule 3 (e) it is only when the judge is satisfied that the report is in consonant with the evidence before him that he can decide the case based on the said report. In the instant case the facts of the case disclosed that the motion was filed in the middle of the trial. As rightly observed by the trial judge it would amount to abdicating her Constitutional duties as enshrined under S.6 of the 1999 Constitution of the Federal Republic of Nigeria if she abandoned the hearing of the case to its logical conclusion.
I agree therefore that the appeal be dismissed. I hereby order that the suit be and is hereby remitted back to the Lagos State High Court for confirmation of hearing, to its logical conclusion by Inumidun Akande J. I abide by the other consequential orders made in the lead judgment inclusive of costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have had the benefit of reading before now the Judgment most eruditely written by my Lord J. I. Okoro JCA and I agree entirely that the appeal has no merit. The trial Judge had the unfettered discretion under Order 27 Rules 2 and 6 (3) (a) of the High Court of Lagos State Civil Procedure Rules, 2004 to adopt or write the report of the pre-trial Judge but only at the conclusion of his trial which cannot be truncated mid stream by an imposition on it of an arbitrator’s or umpires or referee’s report in the pattern of a consent Judgment as sought by the Appellant herein.
I agree that this appeal be dismissed and the suit to proceed for continuation of hearing at the Lagos State High Court before the same Judge or some other Judge as may be determined by the Hon. Chief Judge of Lagos State upon application of either of the parties.
Appearances
Adegboyega Thompson Esq.For Appellant
AND
Dr, F. A. Ajayi, SAN with C. D. Omolabi Esq.For Respondent
