Case No.:

AC-APP-2-1961

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Civil Procedure—Commissions-—Civil Justice Ordinance. Order VIII. Rule5—the court may reject Questions of law decided by commission

Plaintiff-appellant and defendant-respondent had credit dealings, which gave, rise to a dispute about the size of the debt. The parties agreed to submit their accounts for examination to a commission. The commission’s report contained not only an account of the transactions between the parties but determined the liability in favour of the plaintiff on the basis of its decision concerning the legal propriety of certain of the transactions. The Province Judge accepted the commission’s findings of fact, rejected the legal findings, and readjusted the account accordingly. The plaintiff appealed on the grounds that the Province Judge should not have rejected the commission’s legal findings since no account between the parties could be determined without attention to the legal propriety of some of the transactions.
Held: The Province Court has the power to reject the findings of the commission concerning the legal propriety of transactions between the parties since this is a question of law to be finally determined by the court

Judgment

                                            (COURT OF APPEAL) *

                           ALl ABU SAM v.

                                                             KAMBALOSMAN

AC-APP-2-1961

Advocates: Ahmed Guma’a for plaintiff-appellant

Abdel Rahim Mohamed Beshir ... for defendant-respondent

B. Awadalla J. December 10, 1962; - This is an appeal against the judgment and decree of His Honour the Province Judge, Kordofan circuit, in CS-259-1957

The plaintiff-appellant is a merchant of El Fasher, and the defendant- respondent a merchant of El Obeid. Between 1952 and 1955 they had credit dealings between them under which goods used to be forwarded from defendant-respondent to plaintiff-appellant to be paid for by post dated cheques. Plaintiff-appellant alleged that during the said period, he made an overpayment of a sum of £S.83 and was therefore claiming that amount. The defendant-respondent admitted the credit dealings for the period in question and payment by post-dated cheques, but denied any overpayment. One issue only was framed:

“Is the defendant-respondent indebted to plaintiff-appellant for the sum of £S.8334.89om/ms. or any part thereof?’

The parties agreed that the matter of examination of the current account be referred to a commission, and on May 9, 1957, the court complied with the request of the parties so to refer the matter to a body of five merchants of which each of the parties named two members and the court named the fifth.

The said commission failed in its duty to submit a report within the time specified, and on November 9. 1957, a new body of three was appointed to do the job of which one member was nominated by each party and a third nominated by the court. This commission took a very long time to submit a report, which was only received, by the court on April 28, 1958. Item 3 of the said report showed that there was an over payment in the accounts of a sum of £S.1178.33om/ms., but that if the prices charged were within the maximum allowed by law for the articles sold, then the overpayment would have amounted to £S.2515.925m/mS.

No application was made to the court by either party under Civil Justice Ordinance. Order VIII, to examine the commission or any member thereof and relying on the report, the court gave judgment in favour of plaintiff-appellant for £S.1178.330m/ms. The court rejected the com mission’s finding as to the overcharge in prices. It said: “ . . . the court has decided to reject this decision as the commissioners were not asked to report on the prices in the first place; and secondly, it is very difficult to ascertain prices of goods sold in 5952-55 which were accepted by plaintiff-appellant who paid for them at that time:”

The plaintiff-appellant appealed against this decision. His learned advocate contends that the court below was wrong in rejecting the finding of the commission as to the surcharge because the commission could not have arrived at a correct finding on the accounts without a careful scrutiny of the prices to see that they were within the maximum allowed by the law.

The learned advocate for defendant-respondent on the other hand con tends that it was not within the province of the commission to examine the specific dealings in order to decide on their legality and therefore the court below was quite right in rejecting the finding of the commission on the point.

In my view this appeal should be dismissed. The order made by the court with the consent of both parties was one to “check and report” on the accounts and not to determine the liability of the parties in so far as the dealings between them were concerned. It is certainly not within the province of a commission to determine the rights of the parties where such rights are disputed, but their duty is to report on the accounts as they stand. To say otherwise, would be to confer upon a commission the powers of a judge. Nor is the argument acceptable that it was incidental to the taking of accounts to look into the substance of the transactions. Such a proposition would mean that once accounts are referred to a commission for “checking and report” the commission is automatically invested with a power to investigate the propriety of the whole dealings and to rectify improper transactions. Such a proposition is obviously untenable. Nor is a commission of laymen properly equipped to deal with the substantive side of the dispute. In the present case, for example, the issue as to prices is one of mixed law and fact which could not have been decided by a casual examination of entries, but involves the interpretation of detailed enactments which are often very difficult to construe or apply. I have been at pains to find help on the point either in the English or Indian decisions but the point does not seem to have been decided elsewhere. However, in the Indian case of Raymond and Rupchand Billaram A.J.Cs. v. Nazarali Samji (1924) A.I.R. (Sind.) 9, it was held that iii a suit for accounts the question whether certain contracts were authorized or not is a question for the trying court to decide and not a question which would be referred to a commissioner for taking accounts under the Indian Order 26, r. 11. The case was one for account between a firm and its commission agent in which the defendant-respondent denied that they had authorized certain contracts, and the commissioner, to whom the question of taking accounts was referred, went into the matter of authorization and decided it in favour of the defendant-respondent. His report was confirmed by the court and plaintiff-appellant appealed. It was held that it was ultra vires the commission to make a decision on the point raised by defendant-respondent. The court said: “The proceedings of a com missioner are an inquiry for the information of the court and not a trial. If the commissioner finds a fact, his finding is not a decision upon it. To hold that the finding of a commissioner on a question of fact decided by him must be accepted as it stands..  would practically be giving more weight to his decision than to a judgment of the court of the first instance and treating the objections to a commissioner’s report on the same level as an application for revision on findings of fact and virtually to place the finding of fact of a commissioner on the same footing as the verdict of a jury.”

For the above reasons, I am of opinion that His Honour the Province Judge was quite right in rejecting the commission’s finding as to the alleged surcharge.

This appeal is therefore dismissed with costs.

M. A. Hassib J. December 10, 1962: —I concur.

Hashim M. Abul Gassim P.1. December 10, 1962: —I concur

Court: M. A. Hassib J., B. Awadalla J. and H. M. Abul Gassim P.J.