Keeble v Shelton (Civil Appeal No. 3 of 1948) [1948] EACA 5 (1 January 1948)

COURT OF APPEAL FOR EASTERN AFRICA

Before Sir G. GRAHAM PAUL, C. J. (Tanganyika), BOURKE, J. (Kenya), and COFFEY, Ag. J. (Kenya)

O. S. KEEBLE, Appellant (Original Plaintiff)

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E. H. SHELTON, Respondent (Original Defendant) Civil Appeal No. 3 of 1948

(Appeal from decision of H. M. High Court of Uganda)

Civil procedure—Partnership accounts—Referee.

In a suit between two parties it was ordered by the Court, inter alia, that an account should be taken. A Referee was accordingly appointed. The plaintiff objected to the report of the Referee but it was substantially adopted by the Court. The Referee was not called as a witness by either party and the Court expressed the view that it would be improper for itself to call him.

*Held* $(11-2-48)$ .—(1) That the report of a Referee is evidence in a suit.

(2) That it is within the inherent powers of the Court to call upon the Referee, who is *ad hoc* an officer of the Court, for explanations about his report.

Slade for the Appellant. Shannon for the Respondent.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—As regards the second issue (section B of the grounds of appeal) which attacks the report of the Referee 1 agree that the Rules of Civil Procedure in Uganda make no specific provision as to the power of the Court to call upon the Referee for explanations about his report, but I am quite satisfied that it is well within the inherent powers of the Court, either *ex proprio motu* or on the application of either party to call upon the Referee, who is *ad hoc* an officer of the Court, for any explanations that the Court may consider to be necessary. The Court, in my respectful opinion, wrongly held that it was not competent for the Court to call upon its own Referee to answer questions as to his report. That, however, is, in my view, unimportant, in view of the fact that both parties elected, on the filed note of objections, to discuss the report as it stood, without any assistance from the Referee or from any witness to the facts covered by the report.

In that state of affairs in my view it was open to either party to criticize the report only in respect of any error apparent on the face of the report; and for the Court to reject any part of the report so vitiated by apparent error, whether of fact or law. I find myself, however, in agreement with the submission of the respondent's advocate that the report and the attached accounts show no error on the face of them; and there being no evidence submitted by either party to contradict or modify the report, the learned Chief Justice was in my view justified in accepting the report as it stood, which in fact he did. The note of objections filed by the appellant was of course mere pleading and not evidence.

In view of the doubts which appear to exist as to the nature and effect of a report by a Referee appointed by the Court to take an account I think it would be well for this Court to make it clear that such a report is not at all of the nature of an award by an arbitrator. In this connexion I regard the references we have been given to the functions and powers of a Chancery Master as completely irrelevant. The Referee's report is no more and no less than evidence in the suit. It is of course generally the evidence of an expert witness and as such entitled to due weight, but it is no more than that, and it has to be considered in relation to other evidence, if any, which may be given by or for the parties in the case when the report comes up for consideration, on the filing of notes of objections by either or both of the parties. Where, as in the present case, no evidence is called by either party, criticism of the report and accounts by the parties or by the Court is naturally restricted to matters apparent on the face of the report and accounts. In short, the position was that the only evidence before the Court was the Referee's report. The position is the same in this Court.

I accept as perfectly sound the argument of respondent's advocate based on paragraph 5 of the report. That paragraph reads as follows: -

"5. The account delivered by the defendant annexed hereto and marked B deals with work done prior to 1st September, 1946; it is expressed to be made up to 31st August, 1947, for it necessarily deals with collections, payments and other adjustments which could only be effected after 31st August, 1946, this account is made up from the books of the partnership and is in accordance therewith."

The report is itself evidence, the evidence of an expert appointed by the Court with consent of both parties. No application was made on behalf of the appellant to cross-examine the Referee or to lead evidence contradicting or modifying his evidence so that the report was before the Court below as the only—and the uncontradicted—evidence in the case. The report is uncontradicted evidence of facts. The report was the only evidence before the learned Chief Justice and I fail to see how this Court can say that the learned Chief Justice was wrong to accept that uncontradicted evidence as in fact he did.

The appellant's advocate has urged in this Court that the report should not have been accepted in the Court below as the whole proceedings were not produced with the report. Neither in the note of objections, nor at the hearing on the report and objections was that objection raised and I do not see that this Court can possible entertain it. I find no substance in the second part of thisappeal (Section B of the Memorandum of Appeal).