Joseph Saliba V. M. J. Lababedi & Ors. (1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

The point to be decided in this appeal is whether in the events that happened a referee chosen by the parties and appointed by the court should, at the instance of the appellant, be removed.

The application was made by the present appellant; he was the plaintiff in an action instituted in the High Court, Lagos, against the respondents, as defendants, and in which he claimed, inter alia, an account of partnership funds and payment over to him of whatever is found due to him on the taking of such account.

It appears that an order was made for the defendants to file such an account and for the plaintiff to falsify and surcharge. These steps seemed to have been taken on that part of the order and complied with and it seemed also that thereafter it was agreed by the parties that the accounts be referred to a referee in accordance with rules of court. On the 22nd June, 1967, both parties filed jointly in court a document purporting to contain terms of reference in respect of which they would go before the referee when appointed. The agreed terms of reference read:-

“To determine how much (if any) is due and payable by either party to the other in the light of:-

(a) The writ of summons

(b) Statement of claim

(c) Statement of defence

(d) Statement of account filed by the defendants

(e) Notice of falsification and surcharge filed by the plaintiff, and

(f) Such evidence as the parties may wish to call before him, relating to the issues set out on the writ and pleadings.”

On the 26th June, 1967, the parties appeared before the High Court, Lagos (Lambo J.) and both parties agreed in the nomination of Mr. Mojibola Oluwa, a chartered accountant of Lagos, as the referee. The learned trial judge then made the following order:-

“It is hereby ordered that the said Mr. Oluwa, a chartered accountant, be and is hereby appointed a referee as per the terms of reference jointly filed by the parties in this Court on the 22nd June, 1967.

Copies of the referee’s report should be filed and served on the parties who will as between them bear the referee’s remuneration in equal proportion.”