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BENDY v. NWOJE (2022)

BENDY v. NWOJE

(2022)LCN/16019(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Wednesday, April 27, 2022

CA/AW/524/2018

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

EMMANUEL BENDY APPELANT(S)

And

EVANGELIST FERDINAND NWOJE RESPONDENT(S)

 

RATIO:

THE DEFINITION OF A REFEREE AND THEIR DUTIES

A referee is also not a witness. Every temptation to classify a referee as a class of witness must be resisted because a referee is not a witness judging by the role he plays. He does not testify. A referee is actually a fact finder saddled with the duty of conducting an inquiry on any question arising in any cause or matter referred to him by the Court. At the end of his inquiry, the referee submits his report to the Court who may adopt the report wholly or partially. Thus a referee not being a witness cannot be subjected to cross-examination. The Appellant does not have any right to cross-examine the referee.
​In the same vein, a referee does not tender documents in evidence not even his report. He only presents his report to the Court. It is thus clear that a referee’s report is different from documents intended to be used in a matter. Such documents must be tendered in evidence by the relevant party and before the documents are admitted in evidence they will be subjected to the rules of admissibility of evidence set out in the Evidence Act and such other laws regulating admissibility of documents. PATRICIA AJUMA MAHMOUD, J.C.A.

FAILURE OF THE REFEREE TO PRESENT A COPY OF HIS REPORT TO THE PARTIES CANNOT AMOUNT TO A DENIAL OF FAIR HEARING

The Appellant cannot claim that his right to fair hearing was denied because he was not given the opportunity to cross-examine the referee. There is nothing in the law or rules of Court that gives the Appellant the right to cross-examine a referee. Let me also reemphasize the fact that a referee once appointed becomes an officer of the Court and assists the Court in the narrow issue of fact finding referred to him. The referee is not answerable to the parties, even if they were the persons that recommended him for appointment. Again, the Appellant is not entitled to a copy of the report ahead of its submission to the Court. Thus failure of the referee to present a copy of his report to the parties before it was laid before the Court does not and cannot amount to a denial of fair hearing. What is more, one of the attributes of fair hearing is giving equal opportunities to the parties in litigation. Where parties are subjected to the same conditions one party cannot be heard like in the instant case, to complain of want of fair hearing. See INEC & ANOR V MUSA & ORS (2003) 3 NWLR, PT 806, 72 and ARDO V INEC & ORS (2017) 13 NWLR, PT 1583, 450. PATRICIA AJUMA MAHMOUD, J.C.A.

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons dated 16th June 2010, the Plaintiff commenced an action against the Defendant at the High Court of Justice of Anambra State sitting in Onitsha. As per his Amended Statement of Claim, the Plaintiff sought the following reliefs: –
a. A declaration, that the land now in dispute is a piece or parcel of land known as and called Plot 749 situate at Akpaka Forest layout, Onitsha, Anambra State of Nigeria.
b. A declaration that the land now in dispute known as and called Plot 749, Akpaka Forest Layout, Onitsha, Anambra State of Nigeria, is not within the area of land granted to the Federal Government of Nigeria by the Anambra State Government for the purpose of establishing Federal Sites and Services Scheme at Onitsha, Anambra State on the said piece or parcel of land known as and called Transi Nkisi Layout, Onitsha belonging to the Federal Government of Nigeria.
c. A declaration that the Plaintiff, is by virtue of the Judgment in suit No. O/332/2005, the person entitled to the statutory right of occupancy in respect of the land now in dispute known as and called Plot 749, situate at Akpaka Forest Layout, Onitsha, Anambra State of Nigeria.
d. N5,000,000.00 damages for trespass.
e. An order of injunction perpetually restraining the Defendant, his agents, servants workmen and privies, from further trespassing on the land now in dispute, known as and called Plot 749, situate at Akpaka Forest Layout, Onitsha, and/or interfering in any way or manner whatsoever or howsoever called with the land now in dispute again.

The Defendant on the other hand filed a Statement of Defence to the Amended Statement of Claim.

The pith of this case is that the Plaintiff claimed ownership of the land in dispute tracing his title to the land through the Government of Anambra State. Whilst the Defendant claimed ownership of the land in dispute tracing his title to the land in dispute to the Federal Ministry of Works and Housing. The dispute between the parties is as to whether the particular parcel of land in dispute falls within the Anambra State portion of the Akpaka Forest Layout or within the Federal Site of the land.

​Trial commenced on 11th July 2016 with the Plaintiff testifying as PW1 and he was accordingly cross-examined by the Defendant’s counsel. Parties through their respective counsel agreed to appoint an independent surveyor to act as referee for the sole purpose of determining whether the land now in dispute falls within the Federal or the State area of Akpaka Forest Layout. Precisely, on 6th April 2017, the parties through their respective counsel appointed Surveyor Gabriel Okeke of No. 2 Venn Road, North Onitsha, as an independent referee to act as referee in the determination of whether the land in dispute falls into the Federal or State Portion of the Akpaka Forest Layout. This decision was conveyed to the Trial Court and same was granted as prayed.

After few adjournments, the referee on 27th February 2018 submitted his Report to the Court. The Trial Court relying on the Report, entered judgment for the Defendant.
Dissatisfied with the aforesaid Judgment the Plaintiff (now Appellant) by a Notice of Appeal dated and filed 21st May 2018 appealed the judgment of the Trial Court to this Court.
Thereafter the Appellant filed his Appellant’s Brief of Argument which was settled by Mr. Chukwudi Obieze and deemed properly filed and served on 28th September 2021, while the Respondent’s Brief of Argument was settled by Mr. Arthur Obi Okafor, SAN and deemed properly filed and served on 1st February 2022 by the Order of this Court.

As expected, the Appellant formulated a lone issue for determination of this appeal, to wit:
“Whether the Appellant was not denied fair hearing by the trial Court, when it made the report of the Referee the Judgment of the Court without affording the parties opportunity to cross examine the Referee and address the Court on issues arising therefrom?”

The Respondent on the other hand also formulated a lone issue, to wit:
“Whether the Appellant was denied fair hearing in the mode and procedure that led to the decision of the Honourable trial Court being appealed against?”

​In his argument, the Appellant’s counsel submitted that his fundamental right to fair hearing was breached by the Trial Court when after receiving the referee’s Report failed to give the Appellant an opportunity to cross-examine the referee on the Report or even address the Trial Court on it. He further argued that the documents used by the referee were not authentic as they were not certified by the Anambra State Surveyor General’s Office and that if the Trial Court had allowed him to cross-examine the referee, the Trial Court would have been seized of those facts. He relied on Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and described the procedure adopted by the Trial Court as “unorthodox and unknown.” He cited Yakaje V Haire [2003] 10 NWLR (Pt.828) and Alake V Abalaka [2003] 6 NWLR (Pt.815) 15.

The Appellant’s counsel further submitted that the Trial Court ought to have showed Exhibits R(i) – R(ix) to the parties especially the Appellant, afforded the Appellant the opportunity to cross-examine the referee and allowed the Appellant to address the Trial Court before giving judgment one way or the other. He cited NDIC V Ecobank (Nig) Ltd. [2002] 11 NWLR, PT 830, 104 and urged this Court to set aside the judgment of the Trial Court on account of the alleged breach of fair hearing and order a retrial.

​Presenting the Respondent’s argument, Mr. Arthur Obi Okafor, SAN submitted that the Appellant has not in any way been denied fair hearing in the mode and procedure leading to the decision of the Trial Court. He reminded the Court that the referee was appointed by the consensual agreement of the parties and approved by the Trial Court with his task duly spelt out. By the aforesaid appointment, the referee became not just the agent of both parties but the agent of the Court as well. He relied on the proceedings of the Trial Court of 16th February 2017, 7th March 2017, 10th May 2017 and 27th February 2018.

Mr. Obi submitted that having consented to the appointment of the referee, the Appellant is now estopped from seeking to cross-examine the said referee who is also his agent. He relied on the decision in I.M.B. (Nig.) Ltd. V Dabiri [1998] 1 NWLR PT.533, 284 at 293 that neither the parties nor Court could renege or resile from a consent order, except where the consent was obtained by fraud nor gross mistake of law. In the instant case, the Appellant has neither alleged fraud or gross mistake of law or any other illegal ground to warrant the setting aside of the order.

​On the argument that the referee’s Reports were not certified, Mr. Obi SAN submitted that it was irrelevant given that the referee was not bound by the rules of evidence and that he was only asked to conduct an inquiry into an issue of fact based on his expert knowledge as a surveyor and having done the work, certification of the documents relied on by the Referee at his conclusion does not arise. He relied on Section 256 of the Evidence Act, 2011

I agree with the learned senior counsel to the Respondent that the whole issue of appointment of a referee, the effect of the report of the referee as well as the power of the referee once appointed is provided for under Sections 48 and 50 of the High Court Law of Anambra State, Cap. 66, Revised Laws of Anambra State of Nigeria (“the Law”). By Section 48(1) and (2) of the Law:
(1) Subject to any rules of Court a Judge may appoint a referee and refer to him for inquiry or report any question in any cause or matter other than a criminal proceeding.
(2) The report of a referee may be adopted wholly or partially by the Judge and if so adopted may be enforced as a judgment or order to the same effect.
​In the instant case, parties through their respective counsel considered it pertinent to appoint an independent surveyor to act as referee for the sole purpose of determining whether the land in dispute falls within the federal or state area. This decision was communicated to the Trial Court who then granted the order as prayed before adjourning the matter to enable the referee to be present in Court. The report was presented by the referee to the Court. The report was eventually adopted by the Trial Court and thereafter judgment was entered for the Respondent as per the report. I am of the considered opinion that the appointment of the referee and reception of his report by the Trial Court substantially complied with the law.
The point must be made that, though the parties initiated discussion on appointing a referee and eventually agreed on one before presenting it to the Court, by granting the request of the parties, the Trial Court appointed the referee and not the parties. This is so because only the Court is empowered to appoint a referee under Section 48(1) of the Law and not the parties.
​Similarly, Section 50(1) and (2) of the Law provide that: -(1) In all cases of reference to a referee or arbitrator, the referee or arbitrator shall be deemed to be an officer of the Court and subject to rules of Court, shall have such authority, and conduct the referee in such manner as the Court may direct.
(2) The report of a referee or award of an arbitrator on any reference shall, unless set aside by the Court, be equivalent to a finding of the Court.
Implicit from the above section of the law is that a referee once appointed becomes an officer of the Court not an agent of the parties or the Court. See Unity Bank Plc v. B.C.C. (Nig.) Limited [2020] 16 NWLR (Pt.1749) 132 at 157, Para. D.
​A referee is also not a witness. Every temptation to classify a referee as a class of witness must be resisted because a referee is not a witness judging by the role he plays. He does not testify. A referee is actually a fact finder saddled with the duty of conducting an inquiry on any question arising in any cause or matter referred to him by the Court. At the end of his inquiry, the referee submits his report to the Court who may adopt the report wholly or partially. Thus a referee not being a witness cannot be subjected to cross-examination. The Appellant does not have any right to cross-examine the referee.
​In the same vein, a referee does not tender documents in evidence not even his report. He only presents his report to the Court. It is thus clear that a referee’s report is different from documents intended to be used in a matter. Such documents must be tendered in evidence by the relevant party and before the documents are admitted in evidence they will be subjected to the rules of admissibility of evidence set out in the Evidence Act and such other laws regulating admissibility of documents.
The Appellant cannot claim that his right to fair hearing was denied because he was not given the opportunity to cross-examine the referee. There is nothing in the law or rules of Court that gives the Appellant the right to cross-examine a referee. Let me also reemphasize the fact that a referee once appointed becomes an officer of the Court and assists the Court in the narrow issue of fact finding referred to him. The referee is not answerable to the parties, even if they were the persons that recommended him for appointment. Again, the Appellant is not entitled to a copy of the report ahead of its submission to the Court. Thus failure of the referee to present a copy of his report to the parties before it was laid before the Court does not and cannot amount to a denial of fair hearing. What is more, one of the attributes of fair hearing is giving equal opportunities to the parties in litigation. Where parties are subjected to the same conditions one party cannot be heard like in the instant case, to complain of want of fair hearing. See INEC & ANOR V MUSA & ORS (2003) 3 NWLR, PT 806, 72 and ARDO V INEC & ORS (2017) 13 NWLR, PT 1583, 450.
The Appellant also complained that he was not given an opportunity to address the Court on the Report before it was adopted by the Trial Court. This argument is not rooted in any rule of law or statutory provision. I am unable to hold that the Appellant was entitled to any right to fair hearing which has been breached by the Trial Court not allowing the referee to be cross-examined.

​In conclusion, I find this appeal completely devoid of merit. Accordingly, it fails and it is hereby dismissed. The judgment of the trial Court is accordingly affirmed.
I assess costs at N200,000 in favour of the Respondents and against the Appellants.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had the advantage of reading in draft the leading judgment of my brother, P. A. MAHMOUD, J.C.A. I agree with it and for the reasons given, I too dismiss this appeal.
I endorse the order as to costs made by MAHMOUD, J.C.A. in the leading judgment.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA and I am in agreement with the reasoning and conclusions reached in dismissing the Appeal as unmeritorious. I abide by the consequential orders made thereto.

Appearances:

MR. NNAMDI PHIL-EBOSIE, with him, MR. F. O. ANIWETE. For Appellant(s)

MR. M. E. ALITA. For Respondent(s)