MOHAMED OSMAN ABDEL NABI v. ABDULLAH SHADDAD

(COURT OF APPEAL)

MOHAMED OSMAN ABDEL NABI v. ABDULLAH SHADDAD

AC-REV-363-1960-

Principles

· Civil Procedure—Appeal and revision—No appeal from order filing award under Civil Justice Ordinance, s. 107 (i), but revision Civil Justice Ordinance, ss. 166.170 and 174

· Atrbitration_procedure__ of three arbitrators—Award made by out only not binding

No appeal lies from an order filing an award under Civil Justice Ordinance. S. 107 (i). the only appealable orders being these specified in Civil Justice Ordinance, s. 170, but a party aggrieved by such an order can apply for its revision to the High Court. Civil Justice Ordinance, s. 170 was not intended to be exhaustive of the remedies available to a party to arbitration proceedings.
An appeal is a substantive right, while a revision is a discretionary power of the appellate authority, exercisable on the application of an aggrieved party.
An order filing an award must be made expressly, and should not be implied from the fact that the court passed judgment in accordance with the award. Being an order,” it should be a “formal expression”’ of the court’s decision to fire the award.
Where, by the agreement of the parties, a board of three arbitrators is appointed, the award given by such a board is only binding if it is made and signed by the three of them acting jointly. It would be a misconduct, furnishing ground for setting aside the award, on the part of a single arbitrator to act by himself on the assumption that the other two were merely the representatives or advocates of the pastier.
Before an award is made, the points in controversy must be ascertained, the parties must be fully heard, and witnesses must be examined in their presence.

Judgment

Advocates: Abdel Wahab Mohamed Abdel Wahab ……..for applicant

Abdel Halim El Tahir ……………for respondent

Abdel Mageed Imam J. October 2, 1960 —An original application for revision was submitted on behalf of applicant-defendant on June 28, 1960. against pronouncement of a judgment according to an award under Civil Justice Ortlinanc s. 167 (r), and a decree passed subsequently in favour of respondent-plaintiff for the sum of £S.707.82m/ms.

On July 20, 1960, this application was summarily dismissed for lack of jurisdiction. The record read:

“In his judgment under issue No. 4 the District Judge wrote:

Issue No.4 : Can the award be confirmed or set aside? Therefore the award ought to be confirmed.’ This finding contains by implication a refusal to set aside the award. An application to have an award set aside lies to the Court of Appeal under Civil Justice Ordinance, s. 170 (i)(f)

On August 20, 1960 leave to review the above order of summary dismissal was granted. The parties were heard by their pleaders in the application. The following two main and only points were heard in. support of the application:

(a) Submitted that the finding of the court below contained by implication a refusal to set aside the award, in a proper case, an appeal lies to the Court of Appeal under section 170 (i) (f), and that this court would have no jurisdiction to deal with the matter.

(b) Admitting the correctness of the above ruling, i.e., that the finding in question contains an implied order refusing to set aside the award. still an application for revision lies to this court because of civiI

Under Civil Justice Ordinance. s. 4 (15). “order” means “the formal expression of any decision of a civil court which is not a decree.”

Justice Ordinance, s. 170 (2), read with section 174. as the order complained against was made by a District Judge in a province in which a Judge of the High Court is exercising his functions. In such a case, it is contended, that as no appeal is allowed to the Court of Appeal, an aggrie party may have redress by way of application for revision under Civil Justice Ordinance, s. 174, to a High Court Judge.

It must be pointed out from the outset that this court’s former ruling that the finding of the court below contained by implication an order refusing to set aside the award, was bad in law. For the award in question having been reached consequent to an arbitration without the intervention of the court, the relevant section governing the point of law in issue is Civil Justice Ordinance, s. 167. This point is whether an appeal lies in a proper case under Civil Justice Ordinance, S. 170 (i)(f) to the Court of Appeal from an order refusing to set aside an award purporting to have been issued under section 167 on the one hand and on the other hand whether a right by way of revision arises by the application of section 170 (2) in case the conditions mentioned therein are satisfied.

As I see it, I think Civil Justice Ordinance, s. ‘70 (i) (f), does not apply to the present case. An order refusing to set aside an award can only be made under section 161 when the arbitration was made by intervention of the court.

Civil Justice Ordinance, s. 162, reads:

(I) Where the court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration in manner aforesaid, and no application has been made to set aside the award, or the court has refused such application, the court shall, after the time for making such application has expired, proceed to pronounce judgment in accordance with the award of the majority of the arbitration.”

Civil Justice Ordinance, s. 167, reads:

(I) where the court is satisfied that the matter has been referred to arbitration and that an award has been made thereon, and where no ground such as is mentioned in section 160 or Section 161 is proved, the court shall order the award to be filed and shall proceed to pronounce judgment according to the award.”

By comparing these two sections it is significant to observe that the grounds under sec 161 are available only by way of defence and a party has no right to have the award set aside by application, and that once the court is satisfied that such grounds, if any, were not proved it shall file the award and pronounce judgment.. No appeal lies from such a judgment. subject to certain exceptions.

The principle underlying this rule and the rule under section 162 (2) is admirably illustrated by the quotation presented by the learned advocate for respondent-plaintiff:

“A reference to arbitration means the abandoning of the regular tribunal set up by the state and presided over by trained judges and referring the matter in controversy to domestic tribunal which may consist of laymen. The aggrieved parry, therefore, cannot have recourse to the ordinary remedies either by way of revision or appeal when the verdict of the tribunal of his own choice has gone against him.

For the above reasons I think the decree dated June 15, 1960, is un appealable and the application for revision is therefore to be dismissed.

Babiker Awadalla J. February 12, 1960 :—This is an application against the order of the Honourable Judge of the High Court. Khartoum, refusing an application for revision, of the decree of the District Judge, Khartoum (R. A. Muhammadi J.) ordering applicant to pay respondent a sum of £S707.829m/ms, which is alleged, to be due from applicant to respondent under an arbitration award dated February 8, 1955.

The relation between the parties goes back to March 1. 1954. when the parties to this contest entered into two agreements (one written and one oral) whereunder the respondent, a building contractor, agreed with applicant, a Government official, to build two houses on plots No. 8 and No. 11 Block 6 Z.E.. Khartoum East. Plot No. 8 belongs to respondent personally and Plot No. 11 belongs to a certain Musa Mohamed Ahmed, also a Government official and a friend of applicant, who entrusted applicant with the matter of construction.

The written agreement concerns Plot No.8 and is a lump sum contract under which applicant was to pay a total of £S.4,350.000m/ms in consideration of the building by respondent of a house on that plot according to an approved plan but subject to alterations detailed in the said agreement. The following were the most important stipulations in the said Contract:

(a) Any further alterations i.e., over and above those stipulated for in the contract, required by the owner (applicant) should be agreed upon in writing.

(b) Any dispute as to the spacifications in the plan or the terms of the contract were to be referred to an engineer to be agreed upon by the parties to act as an arbitrator, and whose decision shall be final.

(c) Payment of the contract sum was to be made by instalments as follows:

(i) £S.1,000 on the signature of the contract,

(ii) £S.700 on the buildings reaching floor level.

(iii) £S. 750 on the buildings reaching window level,

(iv) £S.750 on the buildings reaching roof level,

(v) £S.700 payable after roofing,

(vi) £S.400 balance on delivery.

(d) Completion in four months.

The oral agrvement, i.e., that concerning Plot No. ii was a measurement contract under which respondent was to build a house according to an approved plan at certain scheduled rates. It appears that work was soon after started but, according to applicant’s evidence, was stopped during August because respondent, although he was up to that time in receipt of a total of £S.7,460.950 m/ms, was in such financial straits that he was incapable of continuing the work. According to applicant’s story the house was at that time below the roofing stage and it seems that applicant was unwilling to go on paying, perhaps because he thought that what was owing to respondent was far less than the amount actually required to complete the buildings. There is no doubt that by that time mutual distrust had crept into the relations of the parties. It was for that reason that common friends of both parties intervened as mediators, and although as a result of their mediation the deadlock was temporarily eased, this mutual distrust continued to mar their relations to an irrepairable extent. These mediators, D.W4 D.W.5 and another, apparently guaranteed to applicant that the houses would be delivered to him complete in. every respect without his being involved in any expense beyond what he was liable to pay on a proper taking of account and also guaranteed to respondent that he would be financed to finish the job. What they did was actually nothing more than to act as a conduit-pipe in the payment of the money which applicant was until then unwilling to pay respondent directly. By reason of this intervention, the payments to respondent went up to £S.8.272.305m/ms by November 1954 Work was therefore resumed, and on November 6. 1954 respondent notified applicant by virtue of a letter that the work on Plot No. 8 (i.e., applicant’s own house) was finished and that work on Plot No. ii (Musa’s house) would expire a week later. According to applicant’s story he asked a friend of his, an engineer, to go and take delivery on his behalf, but respondent refused to give delivery. At that time, it appears respondent thought he was entitled to a further £S.1,041.73ç5m/ms from applicant and applicant, on the other hand, considered that the houses were incomplete in certain respects and that the workmanship and structure were defective. Respondent contends that on November 15,1954 , he sent a statement of account to applicant but applicant in his evidence denied the receipt of this statement. the common friends of the parties who had intervened during August made efforts to bring the parties to a settlement but without success and so on November 30, 1954 the parties agreed in writing to refer the matter to a board of three engineers to “take delivery” of the two houses. Due to the importance of this document and the different interpretation which either party is trying to place upon it, I am attempting a literal translation thereof in full hereunder, but I should like from the outset to make it clear that this board was not appointed under Clause 2 of the so-called, general conditions of the contract which clause is only operative in case of difference between the parties as regards the details of the plan or the interpretation of the various clauses of that agreement. Furthermore, while the terms of reference of this board covered the taking delivery of both houses, the general conditions of the contract related to applicant’s house exclusively. Below is a literal translation of the document by virtue of which this committee was appointed:

“Delivery of the houses of Dr. Osman Abdel Nabi and Musa Effendi Mohamed Ahmed.

the parties to this agreement Dr. Osman Abdel Nabi (re his house No. 8 Block 6 Z.E. and re the house of his principal No. ii Block 6 Z.E.) and contractor Abdullah Shaddad (who had undertaken the building of the said houses in the second class residential area of Khartoum) hereby agreed on the following:

To appoint a board composed of engineer Mustafa El Tayeb on behalf of Dr. Osman Abdel Nabi and engineer Khidir Khalafalla on behalf of contractor Abdullah Shaddad. and engineer Ali Effenth Nur to act as an umpire acceptable to both parties, the three of whom to constitute a board to take delivery of the houses in question. The decision of the said board shall be final and binding on both parties and in accordance therewith the accounts between the parties shall be final and Dr. Osman Abdel Nabi given delivery of his house. Both parties have accepted this and appended it with their signatures hereunder.

(Signed) (Signed

It is not clear what the exact meaning of the term “to take delivery” is, but judged in the background of the relations of the parties this could have meant examination of the buildings, checking the buildings against the contract standards, dealing with the question of variations and the disputes relating thereto and finally arriving at a valuation of the buildings.

One of the members, Mustafa El Tayeb, died some time after the board had done its work and his evidence was accordingly not available, but the two others anpeared before the court and gave evidence of what actually had happened. P.W. 1. the umpire, says “Each party appointed an engineer to represent him who submitted their reports. However, Sayed Shaddad’s representative, El Sayed Khidir Khalafalla, submitted his report in time and the other did so after a lapse of about a month. His name is late mustafa El Tayeb. I checked the measurements and gave my opninion that the buildings were erected to the correct standard and then I made the award.”

The award was dated February 8, 1955, and starts as follows:

“After examining the plans, comparing the plans with the building, considering the schedule or rates laid by the second party (ie., respondent), hearing and obtaining explanations of the various points in controversy, examining the reports of the engineers appointed by the parties. I, being the umpire agreed to by both parties, have, according to the best of my ability, arrived at the following conclusions in so far as the work actually done is concerned.”

He then found that the whole amount which applicant was liable to pay under the contract was £S.4.947,400m/ms on one house (i.e., applicant’s own house) and £S.4,032.730m/ms on the other. On February 21 1955. respondent by registered letter claimed from applicant payment of £S.707.825m/ms which is the difference between the amount found by the arbitrator to be due to respondent and the sum actually received by him from applicant. Applicant refused to pay and a few months later, proceedings culminating in this application were instituted under Civil Justice Ordinance, s. 166. The plaint is undated but first appearance thereon on behalf of respondent was made on May 30. 1955. Applicant replied on July 13, 1955, claiming

(a) that the award was not binding upon him in that it was not made a accordance with the agreement to refer to a board of three arbiters and hence its filing should be refused by the court,

(b) that the respondent has misled the arbitrator by failing to disclose material facts.

To this defence, respondent’s advocate replied on July 16, 1955, denying the invalidity of the award and claiming that it was made in accordance with the agreement to refer to arbitration. Issues were framed but no date fixed for hearing but from a note it appears that an amicable settlement was under consideration. That is apparently the reason why nothing was done until such time as the case became liable for dismissal under Civil Justice Ordinance, s. 217, for lack of prosecution. and was so dismissed on October 27, 1956. This dismissal was set aside on application by respondent on April 15, I957 but applicant applied to the Court of Appeal to have

that setting-aside order cancelled and was unsuccessful. After that, the case went through a series of adjournments for no adequate reasons until on December 16, 1957 both advocates requested the court for an order for fresh pleadings and that order was, I regret to say, automatically granted. Respondent’s advocate made a fresh statement of claim which was absolutely identical with the original one with the addition of an alternative ground for the recovery of the £S.707,825m/ms as balance due for work done under the contract. In substance, that was nothing but an amendment of claim on which fees ought to have been paid. Applicant’s advocate also made a fresh statement of defence replying to the specific points raised in the statement of claim, but in so far as the arbitrator’s award is concerned it contained nothing new save that it gave other particulars of the alleged misconduct on the part of the arbitrator and acts of fraudulent concealment imputed to the respondent February 24, 1958, issues were again framed on the question of the validity of the award but it took almost two years for hearing to begin after a series of adjournments which, to say the least, discloses a blameworthy attitude of indifference on the part of the judges concerned. The whole hearing was conducted by Mohammadi, District Judge, and it took him almost one and a half years to hear three witnesses for plaintiff and five witnesses for defendant. He gave his judgment on June 15, 1960, finding:

(a) that the award was made with the agreement of the representatives of both parties

(b) that if it were signed by the umpire alone, he has authority to do so;

(c) that even if the umpire had no such authority, his act in signing alone is no more than an error which the court can rectify under Civil Justice Ordinance, s. 166.

He accordingly passed a decree ordering applicant to pay respondent a sum of £S.707.825m/ms.

Against this decree, applicant on July 14, 1960, presented to the Honourable Judge of the High Court, Khartoum, what he called an appeal under Civil Justice Ordinance, s. 170. The Honourable Judge of the High Court dismissed the application summarily on the ground that an appeal to set aside an award lay only to the Court of Appeal.

Applicant then applied to the same judge for a review of the summary dismissal order on the ground that as the case was originally dealt with by a District Judge, then there is no right of appeal and application for revision of the District Judge’s order lay to the Judge of the High Court under the proviso to Civil Justice Ordinance, s. 170, read with section 174.

The Honourable Judge of the High Court heard both parties on review but again refused to intervene on the ground that as an order filing or refusing to file an award under Civil Justice Ordinance, s. 166, is not one of the appealable orders enumerated in Civil Justice Ordinance, s. 170, then it is unappealable and therefore the proviso to Civil Justice Ordinance, S. 170, cannot apply. It is from this decision that application is now made to this court.

Before us, applicant was represented by advocate Abdel Wahab and respondent by advocate Abdel Halim El Tahir. The grounds put forward by advocate Abdel Wahab in support of this application are as follows:

(a) that as the grounds of attack which can be made under Civil Justice Ordinance, ss. 160 and 161, are available to a person against whom an order under Civil Justice Ordinance, s. 167, is sought, then no doubt they carry with them all concomitant remedies including a right of appeal under Civil Justice Ordinance, s. ‘170 (i) (f), and the Honourable Judge of the High Court was wrong in law in deciding that a person against whom an order under Civil Justice Ordinance, s. 166, is made can in no case appeal against that order;

(b) that assuming the incorrectness of the above argument. then no doubt an aggrieved party can invoke Civil Justice Ordinance, s. 174, which says that any person considering himself aggrieved by a decree or order from which no appeal is allowed may apply for revision of such decree or order and the. Honourable Judge of the High Court was wrong in law in considering by implication that Civil Justice Ordinance, S. 170, was intended to exhaust all the remedies available in arbitration proceedings.

(c) that consequential to his decision in (a) and (b) above, the Honourable Judge of the High Court failed to consider the substance of the contention and did not go into the propriety or otherwise of the rejection by the learned District Judge of the arguments against the validity of the award on grounds contained in the evidence and submissions before the court below.

Advocate Abdel Halim, on the other hand, reiterated the arguments given in the judgment of the Honourable Judge of the High Court and stressed the contention that where a special provision is made in the Civil Justice Ordinance providing for appeals in certain special proceedings like arbitration, then the general provisions of Civil Justice Ordinance, S. 174, cannot be called into play in order to afford alternative remedy by way of revision.

I will deal with the points raised on behalf of applicant in their above order.

As regards point (a): I think the relevant section under which an order is assumed (both by the Honourable Judge of the High Court and the learned advocates on both sides) to have been made in one under Civil Justice

Ordinance, s. 167, and not Civil Justice Ordinance, s. 166. But although there appears to be general agreement on the part of all as to the existence of such an order, yet I regret to say that no such order exists. In other words no order filing the award under subsection (i) of the Civil Justice Ordinance, s. 167, was made. All that the District Judge did was simply to pass a decree for a sum which was not at all found by the award to be due and owing nor ordered by the award to be due and owing nor ordered by the award to be paid. The learned District Judge arrived at this sum by deducting the amounts alleged by respondent to have been paid by applicant from the total cost of the buildings as given in the award, The judgment given cannot therefore be said to be one pronounced “according to the award” within the meaning of Civil Justice Ordinance, s. 167. This is because the award was silent as regards accounts which were outside the board’s terms of reference. The arbitration agreement says that the duty of the board was “to take delivery cf the houses in question.” It then stipulates as follows “The decision of the said board shall be final and binding on both parties and in accordance therewith the accounts between the parties shall be finalised and Dr. Osman Abdel Nabi (applicant) given delivery of his houses.” Even the board itself was in no doubt about this, for. P.W. i, the umpire. says in his evidence “It did not happen that the defendant put before me the documents of accounts in respect of the buildings as it was outside the scope of my duty.”

It may therefore be evident from the above that here we have a case which was not meant by the parties to be disposed of completely by arbitration proceedings but in which there is a residuum which was meant to be settled after arbitration and which was in fact not so settled. This residuum is the question of accounts, i.e., the money received by respondent from applicant. It was clear from the start of these proceedings that the parties were at variance as regards those amounts, for while applicant contended in his defence that he had paid a sum of £S.8,392.050m/ms (and later quoted this figure as £S.8,508.313m/ms respondent is admitting receipt of £S.8,272.305m/ms as stated in paragraph 9 of his plaint.

In a case like this, the award of arbitrators only abridges the judicial proceedings up to a certain point, and what the District Judge ought to have done was to order the award to be filed if he were convinced there was no impediment to such an order, and then pronounce judgment in accordance with it and pass a preliminary decree which would have finally disposed of all the matters in controversy in so far as such matters were left to be decided by arbitration. In the case under consideration, this would only have left the dispute as to accounts to be determined by the court and a final decree issued.

I would like to repeat what I said before that the talk about an order under Civil Justice Ordinance, s. 167, having been passed in this case is assuming a fact which is non-existent unless it is intended to be argued that because a decree was passed against applicant then the District Judge must be presumed to have made an order filing the award, If that is so then it would be an incorrect presumption, for civil Justice Ordinance, s. 167, requires an order, i.e., a “formal expression” by the court of its decision filing the award and no such “formal expres can be implied. The decision of the Honourable Judge of the High Court that here there was an order under Civil Justice Ordinance, S. 167, is in my view incorrect, and it is therefore unnecessary to deal with the argument pressed by the learned advocate for applicant which presupposes the correctness of the decision referred to.

As regards point ) b): I entirely agree with the learned advocate for applicant that this is a case of revision and not appeal. It is a case in which a decree for over £S.100 was passed by a District Judge in a Province in which a Judge of the High Court is exercising his functions and therefore is governed by Civil Justice Ordinance, S. 174, read with the proviso to Civil Justice Ordinance, s. 168.

The argument of the learned advocate for respondent, which was accepted by the Honourable Judge of the High Court, is that because Civil Justice Ordinance, s. 170, specifically provides for certain arbitration orders to be appealable, a party aggrieved against any decision based on an award who cannot bring his case within any of the cases specified in the section referred to has no remedy whatsoever either by way of appeal or revision. In other words, the learned advocate is contending that the decree in this case is based upon an implicit order filing the award under Civil Justice Ordinance, S. 167, and as an order filing an award is not specifically mentioned in Civil, Justice Ordinance, s. 170, then no application for revision of the decree will lie. I have already dealt with the point that an order filing an award cannot be implied and this is sufficient to dispose of the argument, but I would go further and say that even if such order were expressly made the argument is still unacceptable, for it fails to appreciate the distinction between an appeal and a revision. An appeal is a substantive right given to the aggrieved party, while a revision is simply a power given to the court and for the exercise of which any person aggrieved by a decree or order from’which no appeal is allowed may apply. To contend therefore that a person who is deprived of his right of appeal is also deprived of the remedy of provision would be to render nugatory the whole provisions of the Civil Justice Ordinance relating to revisions.

The learned advocate for respondent contends that arbitration proceedings are special proceedings and that if the legislature made certain, arbitration orders appealable, then the intention to apply the general provision as to revision to those orders not made appealable would be to strip

arbitration proceedings of their special nature. I regret to say that this is an argument which is void of all logic.

As regards point (c) which is the last of the points raised by the learned advocate for applicant, I entirely agree with him Having found that no application for revision lay, it was natural for the Honourable Judge of the High Court to disregard the substance of the application and refuse to go into the propriety or otherwise of the decision of the learned District Judge. The important points which have been continuously put forward by applicant as vitiating the arbitration award are as follows:

(i) that the proceedings were conducted and award was made by P.W. 1 Ali Nur alone and not by the board of which he was umpire;

(ii) that applicant was not heard at all nor called on to give evidence;

(iii) that respondent was heard by the umpire on two occasions in which applicant was absent;

(iv) that P.W. 2, respondent’s representative, took measurements of applicant’s house in the presence of respondent alone; and lastly.

(v) that the umpire employed two persons who visited the house in the absence of both parties and gave their views in writing.

In answer to these points, the learned advocate for respondent contends:

As regards the first point: that P.W.1 was intended by the parties to be the sole arbitrator.

As regards the last point: that there was no act of delegation what soever, and that if there was any such act, it related to an immaterial aspect of the points in controversy.

As regards all other points: that applicant is estopped from raising the impropriety of the award at this stage because he was notified of the award on February 8, I955 the rule being that if a party to arbitration proceedings does not object before’ the board to any alleged act of misconduct, then he is completely barred from raising the matter in proceedings for filing the award.

In my view point (i) is the most material of all. The agreement in writing is absolutely clear as to the intention of the parties, and I am unable to understand how the advocate for respondent can deny that it was a board of three and not P.W. 1 alone that was appointed to act. The said document after referring to the appointment of the arbitrators says

The three of whom to constitute a board to take delivery of the houses in question. The decision of the said board shall be final and binding.” There is also no doubt that it was P,W. 1 who made the decision to the exclusion of the other two arbitrators. He treated the other two members as simply agents or representatives of the parties in the collection of relevant facts and the submission and proof of their respective cases. He says at p. 41 of the record, “I checked their measurements, gave my opinion that the building was erected to the correct standard and then I made the award.” I do not think that his attitude in so doing was correct and its effect is no doubt to invalidate the award. Russell, Arbitration 137 (16th ed. 1957) says:

“On a reference to more than one arbitrator, when there is no provision for an award made by less than all being valid, each of them must act personally in the performance of the duties of his office, as if he were sole arbitrator, for, as the office is joint if one refuses or omits to act, the others can make no valid award. Such a provision is, however, implied, unless a contrary intention is expressed, whenever the arbitration agreement requires that there shall be three arbitrators.”

In this case there was certainly no intention, express or implied, but that the three arbitrators shall act together.

As regards (ii) and (iii) respondent at the bottom of p. 166 says: “I was present in the second and third meetings alone on being summoned by the board and they examined me. All the time engineer Mustafa El Tayeb was present but the defendant was not, although he was summoned.” The evidence of applicant shows that applicant was completely ignorant of how the board arrived at its finding and his evidence on that behalf was not shaken on cross-examination. I am therefore inclined to believe that he was not at all heard before the award was made. Respondent’s allegation that applicant was summoned is of course hearsay and therefore inadmissible. P.W. 1 on the other hand says that he did not hear any evidence at all save what was produced to him by his other co-members. This chaotic state of affairs is in my view due to the fact that the board was labouring under a grave misconception as to its function. P.W. 1 seems to have considered himself as the sole arbiter and the other two members thought they were not part of the arbitration tribunal but merely representatives of the parties litigating before it. The direct result of this was that the arbitration proceedings were conducted “in a vacuum” without ascertainment of the points at issue and in disregard of the first principles of justice which every arbitrator should comply with.

It is inconceivable how an arbiter can embark on proceedings of this nature without first examining the parties to determine the points in controversy in the matter and this is particularly imperative in a case of this sort in which the arbitration agreement refers to such matter in general terms. Russell, Arbitration 150 (16th ed. 1957) says:

“Whether the parties particularly wish it or not, the arbitrator must obtain a clear statement of the disputes which are submitted to him for his decision, particularly if the disputes are not already defined by the terms of the submission.”

In Re Maunder, Halsbury’s Laws of England (3rd ed. 1883) it was said that each party must be permitted to adduce all his evidence and must be fully heard, and that the arbitrator should not close the hearing and proceed to make his award without notifying the parties.

Again, Russell, Arbitration 122 (16th ed. 1957) says:

“An arbitrator must not hear one party or his witnesses in the absence of the other party or his representative. Except in a few cases, where exceptions are unavoidable, both sides must be heard and each in the presence of the other. The principles of universal justice require that the person who is to be prejudiced by the evidence ought to be present to hear it taken, to suggest cross-examination or himself to cross-examine, and to be able to find evidence, if he can, that shall meet and answer it; in short to deal with it as in the ordinary course of legal proceedings.”

At p. 135 referring to this rule he says: “The slightest irregularity in this respect may be fatal to the award.”

In the case before us, it is not clear what sort of evidence or statement was made by the respondent in the absence of applicant in those two sittings, for no record of the proceedings was kept, and non constat that the facts so given by respondent in the absence of applicant, were the decisive factor in the decision

As regards (iv) this was asserted by applicant though no mention of it was made by P.W.2 or P.W. 3. I have no reason to doubt the veracity of applicant’s assertion for it is in consonance with the general attitude of P.W. 2 who, as stated above, considered himself appointed to look after the interests of respondent. Whether this conduct was deliberate or unintended, its effect is no doubt either to nullify the award or at least afford adequate grounds for a court to set aside the proceedings. Russell, Arbitration 136 (16th ed. 1957) says:

“ The arbitrators selected, one by each side, ought not to consider themselves the agents or advocates of the party who appoints them. When once nominated they ought to perform the duty of deciding impartially between the parties and they will be looked upon as acting corruptly if they act as agents or take instructions from either side.”

The learned advocate for respondent argues that applicant is estopped from raising the above points at this stage having failed to make these objections before the board. I am unable to understand how a party who was ignored altogether in arbitration proceedings can be expected to make an objection in those proceedings. Anyway Civil Justice Ordinance, s. 167, is explicit in that any act of corruption or misconduct on the part of the arbitrator can be proved in opposing an order sought under Civil Justice Ordinance, s. 166.

I now come to the last point, that the umpire employed two persons who visited the house in the absence of both parties and gave their views in writing. The learned advocate for respondent denies this fact and alternatively contends that if there was such act, it was immaterial I am unable to understand this denial on the part of the learned advocate in face of Exhibit 1 which states clearly that engineers Ahmed Fadl and Yousif Ibrahim were employed to give their opinion as to the condition of the building and its general standard. The umpire says in the said document that he availed himself of the services of these two engineers because the two member engineers were not available. None of the parties was present when the said two engineers inspected the buildings. It goes without saying that whether the umpire intended those two gentlemen to replace the two members or whether he meant them to act as expert witnesses in the absence of the parties, his act was no doubt inconceivably high-handed and renders impossible the reception of the award by a court of justice.

For the above reasons, I am of opinion that the learned District Judge was wrong in accepting this alleged award as a basis for decision under, or purporting to have been made under, Civil Justice Ordinance, S. 167.

This application is therefore allowed with costs here and before the High Court and the decree of the learned District Judge is hereby reversed.. Conditional on respondent paying the fees for amendment of claim the respondent will be entitled to pursue his claim for the amount in question as money due for work done, and the case is hereby returned to the learned District judge for retrial on this basis.

M. Y. Mudawi P. J February 12, 1961 :—I concur