3PLR – GEORGE E. NDIONG V. C.F.A.O.

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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GEORGE E. NDIONG

V.

C.F.A.O.

FEDERAL SUPREME COURT OF NIGERIA

31ST MARCH, 1955

F.S.C. 215/1957

3PLR/1955/15 (SC)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS:

M.C. NAGEON DE LESTANG, AG. F.C.J. (Presided)

SIR HENLEY COUSSEY, AG. F.J. (Read the Judgment of the Court)

ROBERT YORKE HEDGES, AG. F.J.

 

REPRESENTATION

S.G.O. Ebo -for Appellant.

  1. W. Ubani Ulcoma -for Respondent.

 

MAIN ISSUES

ALTERNATIVE DISPUTE RESOLUTION – HYBRID PROCESSES – ARBITRATIONV – COURT APPOINTED REFERREE:- Referee in abitral proceedings – Role of – Referee not taking oral evidence – Whether proper.

ALTERNATIVE DISPUTE RESOLUTION – HYBRID PROCESSES – ARBITRATION – COURT APPOINTED REFERREE:- Proceeding by the Referee – Whether not intended to be a judicial inquiry with wit­nesses – Whether a Referee must conform to the scope and ambit of his commission as given by court – Where commission confined to examination of certain papers and thereon to court – Whether refusal to expand scope at the instance of one party without court direction amounts to denial of fair hearing rights

ALTERNATIVE DISPUTE RESOLUTION – ARBITRATION – COURT APPOINTED REFERREE:- Where party to arbitral proceeding by way of court commissioned referee desires the expansion of the scope of the commission of the referee – Whether can only be by way of application to the Court – Effect of failure of failure thereto

COMMERCIAL LAW – AGENT:- Agricultural Buying Agent/Beachmaster – Claim for money due for the value of palm oil received or which should have been received by the beachmaster as buying agent for the use of the Respondent – Where not deli­vered or accounted for by the Appellant – How proved – Appropriate reliefs

FOOD AND AGRICULTURE LAW:- Commodity purchase and transport – Agricultural buying agent/Beachmaster for the buying and delivery of plam oil – Duty of agent to keep account

PRACTICE AND PROCEDURE – EVIDENCE:- Remote and conjectural evidence – Admissibility of – Evidence of a statement made by a corporate company  presumably, for the company’s own records, containing an entry of a deficit in stock calculated on a percentage basis – Whether can be relevant to an issue as to an actual shortage in the individual stock supplied by one of its agents

PRACTICE AND PROCEDURE – EVIDENCE:- Evidence relating to collateral facts – Whether is only admissible when such facts will, if established, establish a reasonable presumption as to the matter in dispute, and when such evidence is reasonably conclusive – Effect

 

 

 

MAIN JUDGMENT

COUSSEY, AG. F.J. (Delivering the Judgment of the Court):

By the writ of summons in suit No. C/5/1954, issued in the High Court of the Calabar Judicial Division on the 20th February, 1954, the Respondent sued the Appellant for £3,133.8s-8d (Three thousand, One hundred and thirty-three pounds, eight shillings and eight pence). By the particulars annexed this was a claim, when analyzed, for money due for the value of palm oil received or which should have been received by the Appellant as the Respondent’s beachmaster or buying agent for the use of the Respondent and not deli­vered or accounted for by the Appellant. There was an alternative claim for an account and payment of the said sum of £3,133.8s-8d (Three thousand, One hundred and thirty-three pounds, eight shillings and eight pence) to the Respondent.

 

By his statement of defence the Appellant admitted that he was ac­countable to the Respondent for palm oil purchased by him, but he con­tended, both in his defence filed and later in his evidence, that he could and would only account if, and only if, a Register of casks and drums of oil kept by himself and a Produce Inspector’s Register covering the relevant period of his employment, namely, 22nd March, 1952, to the 27th February, 1953, were produced by the Respondent. He said later in his evidence that he had delivered all palm oil which he had purchased to the Respondent’s company “not necessarily the B.O.P.” The B.O.P. is the Bulk Oil Plant at Calabar and it was the Appellant’s duty to deliver all palm oil which he purchased or received for the Respondent’s account to the B.O.P. On the B.O.P.’s re­ceipts the Respondent would be paid by the Government Marketing Ex­ports Department. Apart from a few exceptional instances, the evidence is that the actual transport from the Appellant’s place of business to the B.O.P. was done by Elder Dempster, by lighter.

 

Before trial the Respondent moved the Court to appoint a Referee to enquire into the accounts. This application was resisted by the Appellant who swore “that the mysterious disappearance of two material books in the custody of the plaintiff (respondent) would render accounting impossible; that the appointment of a Referee would be useless and the plaintiffs should proceed to prove their case.”

 

On the 26th July, 1955, after the Respondent had established by the evi­dence of the Agent that the Appellant was an accounting party, the Court, by order, appointed a Bank accountant as Referee with the following terms of reference:­

“To examine Exhibits `B’ and `C’ and report on the amount of oil (in its various grades) represented by Exhibit `B’ and the amount of oil (in its various grades) represented by Exhibit `C’. The Agent, C.F.A.O., and the Defendant are to be notified when you are going to deal with this matter to enable them to appear if they so desire.”

 

It should be explained that Exhibit B, later Exhibit 2, comprises some 346 produce cheques or chits representing palm oil received by the appel­lant. Exhibit “C,” later Exhibit 5, comprises all the receipts of the B.O.P. for oil sent to them by the appellant.

 

The appellant did not attend on the Referee. The respondent’s agent did. The Referee reported to the Court on the 16th November, 1955. His re­port was received in evidence on the 16th May, 1956, when the action was next before the Court. On that day the respondent’s agent produced inter alia (1) Exhibit “D,” later Exhibit 3, a book showing credits to customers for oil delivered to the appellant against cash advances made to customers by the respondent and (2) Exhibit “E,” later Exhibit 6, the stock sheet signed by the appellant when he took over from a former beachmaster. In cross­-examination the respondent’s agent testified that Elder Dempster issued waybills for the drums and casks of oil delivered to them by the appellant for lighterage to the B.O.P’s premises.

 

Thereupon, at the conclusion of the agent’s cross-examination and after a short adjournment, the Court ordered that the matter be referred back to the same Referee with the following further terms of reference:­

“(1)   To examine the various differences in the quantity of drums purchased and bulked and their respective tonnage.

(2)     To examine the Elder Dempster Waybills in respect of drums and casks delivered from plaintiff’s beach to them for con­veyance to Bulk Oil Plant.

(3)     To examine Exhibits “D” and “E” and to report on the total ton­nage and value apparently short. Value to be based on Grade 1 £61 per ton, Grade II £47 per ton and Grade III £35 per ton. Pre­vious report to be taken in account in this connection.”

 

Having completed the further examination ordered the Referee sub­mitted his second report to the Court on the 17th December, 1956. He re­ported the value of total shortage of oil to be £3,377.19s.10d (Three thousand, three hundred and seventy-seven pounds, nineteen shillings and ten pence).

 

On the 30th January, 1957, the Court heard the evidence in the suit de novo as a different Judge presided. The Respondent offered evidence in proof of the Appellant’s liability, in the course of which Exhibit 8 was admit­ted in evidence, a book kept by the Appellant which showed the movement i.e. the delivery of drums and casks of oil by the Appellant to the B.O.P. The entries in this book tally with the receipts of B.O.P. Exhibit “B,” later Exhibit 5.

 

The Appellant’s evidence on oath will be referred to presently. It is con­venient to say at this stage that the learned trial Judge in a considered Judg­ment, accepted and adopted the calculations in the Referee’s report.

 

Allowing for a rebate of £234-2s-8d. (Two hundred and thirty-four pounds, two shillings and eight pence) on account of leakage of oil on the value of £3,377.19s-10d (Three thousand, three hundred and seventy-seven pounds, nineteen shillings and ten pence) as reported by the Referee, the trial Judge found that the appellant had failed to account for oil to the value of £3,133-8s-8d (Three thousand, One hundred and thirty-three pounds, eight shillings and eight pence) which he had received. In my opinion this finding is fully supported by the evidence and there is no merit whatever in the Appellant’s appeal to this Court. The appeal would have deserved sum­mary dismissal were it not desirable to deal with two of the grounds of appeal which were plausibly argued by learned Counsel for the Appellant.

 

Under Ground 1, Mr. Ebo submitted that in spite of his request as sol­icitor for the Appellant, the Referee did not afford the Appellant the oppor­tunity to be present at the second enquiry and also that a Notice to the Re­spondent to produce at that enquiry (i) a CFAO Produce Stock Book and (ii) “Devon for 1952/53,” was ignored by the Referee and, consequently, by the Respondent. Therefore, the argument runs, the Referee’s second report should not have been accepted in evidence as the Appellant was not present and was not heard at the investigation.

 

I think the answer to this argument is that in this case the proceeding by the Referee was not and was not intended to be a judicial inquiry with wit­nesses. A Referee must conform to the scope and ambit of his commission. In this instance the terms of reference which, presumably, the Appellant’s counsel had agreed to, were confined to examination of certain papers which it is unnecessary to detail again and thereon to report on the tonnage and value of apparent shortage.

 

If the Appellant had genuinely desired the examination of any other documents he would have had them included by the Court in the terms of re­ference and, if he had desired to extend the scope of the enquiry to the taking of evidence by the Referee again it was open to him to apply to the Court. It is apparent, however, that the determination of the issues of fact and liability in the suit were reserved to itself by the Court. By the terms of reference it is clear that the Referee was required to do purely mechanical work, adding up numerous receipts for purchases and deliveries of oil and reporting the total result arrived at in tonnage at values specified in the terms of reference.

 

He was not empowered to take viva voce evidence as to any particular disputed item or items and to say that he allowed this item and disallowed that. From the outset the Appellant’s attitude was not co-operative. His notice for production of books is without details. According to the Respon­dent one of the books called for was, to the Appellant’s knowledge, lost or stolen. The other book called for as the “Devon” may have been a feeler to discover if the Embellages Control Book, to be later produced at the hearing by the Respondent as Exhibit 8, was in the Respondent’s possession. How­ever, that may be, the record shows that in fact all the evidence in proof of the claim was taken at the hearing in Court in the presence of the Appellant and his Counsel. The only value of the Referee’s report was to save the Court the prolonged exercise of adding up a quantity of receipts and making arithmetical calculations by accepted processes. The Appellant had every opportunity at the hearing to answer the Respondent’s case. Giving evi­dence he still maintained that, as a result of the loss or theft of two books kept by him and which he had handed over to his successor, he was unable to render any account. His attitude towards the Respondent’s action was “prove your case, if you can without the missing books which I kept.” This, the Respondent, in my opinion, did to the hilt. They were able, as already observed, to produce the Appellant’s book, Exhibit 8, to corroborate the B.O.P’s records of oil actually despatched by and received from the Appel­lant.

 

As to the general ground that the judgment is against the weight of the evidence, the Respondent produced at the hearing Exhibit 11, a stocktaking statement of palm oil for export from the Calabar area Agency for the com­mercial year 1952/1953. It contains an item to balance the account, in these terms “Add Deficit 2.20%, Tons 29. 2. 3. 23.”

 

Clutching upon this entry as a straw the Appellant has argued, both in this Court and in the Court below, that the Appellant could not physically have had a deficit of 57 tons or any deficit at all if the total deficit for the whole Calabar area comprising Calabar and two other buying stations was only 29 tons.

 

Exhibit 11 was produced by the Respondent and put in evidence by the Appellant when the Respondent’s Agent was under cross-examination. It was not part of the Appellant’s case. I fail to see how evidence of a statement made by the Respondent not to the Appellant, but, presumably, for the company’s own records, containing an entry of a deficit in oil calculated on a percentage basis, can be relevant to an issue as to an actual shortage in the individual stock of the Appellant at a specified place.

“Evidence relating to collateral facts is only admissible when such facts will, if established, establish a reasonable presumption as to the matter in dispute, and when such evidence is reasonably conclusive.”

 

Per Lord Watson in Metropolitan Asylum District v Hills, 1882, 47 L.T. p. 29. In my opinion the value of Exhibit 11 as supporting the Appellant is en­tirely remote and conjectural. How the item referred to is arrived at could only be ascertained by an enquiry into fresh collateral matters which the Court could not and would not embark upon and, in any case, it does not dis­place the clear proof of the Appellant’s liability. I entirely reject Mr. Ebo’s submission on the whole case that there is an error somewhere in the Re­feree’s report. The appeal in suit No. 0/5/54, therefore, fails and I would dis­miss it with costs allowed at £60 (sixty pounds). The appeal as to the Appel­lant’s counter-claim was withdrawn when Ground 7 was abandoned. It is ac­cordingly dismissed.

 

DE LESTANG Ag. F.C.J.: I concur.

 

HEDGES Ag. F.J.: I concur.

 

Appeal Dismissed

 

 

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