[1950] EACA 378

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR RONALD SINCLAIR (Acting President), BRIGGS (Acting Vice-President) and BACON, Justice of Appeal

#### MANIBHAI BHAILALBHAI PATEL, Appellant (Original Applicant)

ν.

## (1) MEHAL SINGH AND MELA SINGH & CO. and (2) ARTHUR GEORGE WRIGHT OGILVIE, Respondents

### Civil Appeal No. 25 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya, Mayers, J.)

Arbitration-When arbitrator functus officio-Jurisdiction of Court-Ad hoc application for order to arbitrator to produce copy of arbitration proceedings -Kenya Arbitration Ordinance, section 9 (2)-Indian Evidence Act, section 161.

The appellant and the first respondents entered into an arbitration agreement appointing the second respondent as arbitrator, who published his award and filed it in the Supreme Court. The arbitrator refused an application by the appellant to supply him with a copy of the proceedings on the ground that he was *functus officio*. An application to the Supreme Court for an order compelling him to supply or file in Court the same documents was refused on the ground that, as the Court will not look at extraneous documents which do not form part of the award for the purpose of determining whether there is or is not an error apparent on the face of the award, there could be no justification for ordering disclosure of the record for the purpose of enabling an unsuccessful party to determine whether or not an award which might be good on its face was or was not made in accordance with the evidence tendered before the arbitrator.

Held (8-11-56).-(1) Once an arbitrator has published and filed his award the Court has no jurisdiction in the arbitration or over the arbitrator except on an application to set aside or remit the award and as this was not such an application it was misconceived.

(2) The position would have been different had the application been ancillary to a pending application to set aside or remit the award.

Appeal dismissed.

Cases referred to: Holgate v. Killick, (1861) 31 L. J. Ex. 7; Doe v. Presson, (1846) 3 D. & L. 768; Scougull v. Campbell, (1819) 1 Chit. 283, English and Empire Digest, vol. 2, p. 430, para. 806; Padley v. Lincoln Water Works Co., 19 L. J. Ch. 436; Nursing v. Nuffer, $(1890)$ 17 Cal. 832.

#### Khanna for appellant.

Nazareth, Q. C., and Kanji for first respondents. Wynn-Jones for second respondent.

JUDGMENT (prepared by SINCLAIR, Acting President).—By an agreement in writing dated the 7th day of January, 1954, the appellant and the first respondents agreed that all matters in difference between them should be referred to the award and final determination of the second respondent. The second respondent published his award on 29th July, 1954, and at the request of the appellant filed the award in the Supreme Court on 16th September, 1954, in accordance with the provisions of section 9 (2) of the Arbitration Ordinance (Cap. 22). On 16th December, 1954, the Supreme Court dismissed an application by the appellant for an order for leave to file out of time an application to set aside or remit the award, on the ground that there was no jurisdiction to enlarge the time fixed by the Arbitration Rules made under the Arbitration Ordinance for the filing of an application to set aside the award. The appellant appealed to this Court against that order in Civil Appeal No. 14 of 1955. The Court allowed the appeal and on 13th October, 1956, remitted to the Supreme Court for hearing on the merits the application for leave to file out of time an application to set aside or remit the award.

On 21st January, 1955, the Supreme Court dismissed an application by the appellant for an order that the arbitrator, the second respondent, do "supply all records and copy of proceedings in the arbitration to the appellant or, in the alternative, that he do "send and file all records" in the Supreme Court. The appellant appealed to this Court. We dismissed the appeal with costs to both the first and second respondents, but subject to a direction that the arbitrator, the second respondent, should be treated on taxation as if he were a trustee appearing only to submit to the Court's order, and should accordingly not be allowed a getting-up fee, that is, the fee for instructions should be nominal. We assessed that fee at Sh. 100. We now give our reasons for dismissing this appeal.

It appears that by a letter dated 20th September, 1954, the appellant's advocates asked the arbitrator for a copy of the proceedings in the arbitration. That letter is not included in the record of appeal. The arbitrator's advocates replied on 28th Sepember, that the arbitrator was functus officio, that it was contrary to established principle to allow an award to be reopened for the purpose of having the evidence upon which the award was based discussed but that the arbitrator was prepared to supply a copy of the proceedings if $(a)$ the first respondents agreed or $(b)$ an order of the Court were obtained. The first respondents did not give their consent. The appellant's advocates then wrote to the Registrar of the Supreme Court requesting him to order the arbitrator to file the proceedings in Court. The Deputy Registrar who dealt with this letter considered he had no power to comply with this request, but he wrote to the arbitrator's advocates suggesting that it would be advisable to file in Court a copy of the proceedings as the time for lodging objection to the award was fast running out. The arbitrator's advocates replied on 9th November, 1954, that he was willing to file the award in Court under section 9 $(2)$ of the Arbitration Ordinance but that it was not necessary or usual to file a copy of the proceedings. It will be noted that the arbitrator had already filed his award in the Supreme Court on 16th September.

The appellant then filed the application with which this appeal is concerned. The affidavit in support of the application was made by the appellant's advocate, Mr. C. H. Patel. In it he stated that the appellant was anxious to make an application to the Court to set aside the award but that, unless he perused the evidence and record, it was not possible to advise the appellant as to the grounds for setting aside the award. The grounds on which it was sought to set aside the award were not mentioned, but at the hearing of the application, the appellant's advocate in the course of his argument made vague allegations of misdirection of fact and misconduct on the part of the arbitrator. It is difficult to avoid the conclusion that no grounds for setting aside the award were known and that a copy of the proceedings was being sought in order to discover whether any such grounds existed.

The learned Judge dismissed the application on the ground that, as the Courts will not look at extraneous documents which do not form part of the "record" for the purpose of determining whether there is or is not an error apparent

on the face of the award, there could be no justification for ordering disclosure of the record for the purpose of enabling an unsuccessful party to determine whether or not an award which might be good on its face was or was not made in accordance with the evidence tendered before the arbitrator. When the learned Judge stated that the Courts will not look at extraneous documents which do not form part of the record he must, we think, have meant that the Courts will not look at extraneous documents which do not form part of the award.

The material which the Court will look at on an application to set aside an award depends on the nature of the grounds of objection. Where it is sought to set aside an award on the ground of error on the face of the award, the general rule is that only documents accompanying and forming part of the award will be looked at. In *Holgate v. Killick*, (1861) 31 L. J. Ex. 7, Wilde, B., said:-

"The principle to be collected from the later cases is very plain and it is. that the Court will not look at anything to induce it to review the decision of an arbitrator on any matter submitted to him for decision except it be something appearing on the face of the award or on a document forming part of the award."

But where the application is based on misconduct on the part of the arbitrator. extraneous evidence is admissible to prove such misconduct and the arbitrator himself may be called as a witness to give evidence as to his conduct of the arbitration proceedings. It seems, however, that the arbitrator cannot be compelled to produce his notes, including his notes of the evidence. In Russell on *Arbitration*, 15th ed. at p. 306, the following passage occurs: --

"It would seem that the notes made by the arbitrator at the hearing of the arbitration cannot be referred to."

In support of this passage the learned author cites *Doe v. Preston*, (1846) 3 D. & L. 768. The report of that case is unfortunately not available to us. From the summary of the report of Scougull v. Campbell, (1819) 1 Chit. 283, in the English and Empire Digest, Vol. 2, p. 430, para. 806, it appears that the Court in that case rejected an application to amend the entry of a verdict according to the notes of an arbitrator, on the ground that the had no power to compet such notes to be brought before them. There is a note to the summary of this case in the *Digest* to the effect that this authority was doubted in *Padley v. Lincoln Waterworks Company*, 19 L. J. Ch. 436, but it is clear from the report of the latter case that it was the decision in another case and not the decision in Scougull v. Campbell which was doubted. If, however, the arbitrator, having been called as a witness, uses his notes for the purpose of refreshing his memory, there seems no reason why the ordinary rules of evidence should not apply so as to enable the adverse party to make such use of the notes as is permitted by section 161 of the Indian Evidence Act as applied to Kenya.

But, whatever the position may be on an application to set aside an award, the first question to be decided in this appeal was whether the Supreme Court had jurisdiction in the application before it, which was not an application to set aside an award, to order the arbitrator either to supply a copy of the arbitration proceedings to the appellant or to file a copy in the Supreme Court. Mr. Khanna for the appellant contended that the Court has inherent jurisdiction to make such an order, but he was unable to cite any authority in support of his contention. Nursing v. Nuffer, (1890) 17 Cal. 832, to which he referred us, does not assist him. In that case the Court referred a suit to arbitration. The arbitrators proceeded with the reference and certain documents were put in as exhibits, but before an award was made the parties settled their differences amicably. On an application made in the suit by the defendants for an order. directing the arbitrators to deliver up to the defendants the documents filed by them in the course of the hearing before the arbitrators, it was held that the suit continued to be a pending suit and that the court had jurisdiction over the arbitrators to compel them to give up documents filed before them as exhibits during the course of the arbitration, and to return the original records of the suit which may have been handed to them. The implication from that decision is that the Court would have had no jurisdiction to make the order sought had there not been a pending suit in which an application could be made.

In our view the Supreme Court had no jurisdiction to make the order sought. Once the arbitrator has published and filed his award the Court has no jurisdiction in the arbitration or over the arbitrator, except on an application to set aside or remit the award. For that reason we think that the application was misconceived. The Supreme Court had no jurisdiction on an application *ad hoc* to order the arbitrator to supply the appellant with a copy of the proceedings or to file a copy in the Court or even to order the arbitrator to return to the appellant his own documentary exhibits. The position would be different if the application were ancillary to a pending application to set aside or remit the award.

It may well be that on the termination of an arbitration a party to the arbitration is entitled to the return of the documentary exhibits filed by him and that an action would lie against the arbitrator in definue or conversion if he refused to return them: but that is not a matter with which we can be concerned in this appeal. We would observe, however, that it appears from the correspondence that at no time did the appellant make any specific request for the return of his documentary exhibits, but throughout insisted on being supplied with a complete copy of the proceedings. At the hearing of the appeal, Mr. Wynn-Jones who appeared for the arbitrator stated that the appellant has never specifically applied for the return of his own documents, that he is entitled to have them back and that they would be returned to the appellant on application.

We would add that Mr. Khanna pressed us strongly on the ground that it would be against natural justice and cannot be the accepted practice of the Courts to refuse such an application as was made in the present case, since it would mean that the Courts were deliberately preventing the applicant from getting at the vital material on which he must rely to establish his rights. The answer seems to us to be this: first, the appellant voluntarily submitted his original dispute to the decision of a lay arbitrator and must thereby be taken to have voluntary abandoned the ordinary course of litigation; and secondly, it is the law that if he wishes to attack the award it is open to him to do so provided that he states the specific ground or grounds on which he relies and which are known to the law. In the present case the appellant has never done this. The application with which we were concerned was neither more nor less than a fishing expedition.

We would emphasize that allegations of misconduct on the part of an arbitrator must be specific and can be investigated by the Court only on an application to set aside or remit his reward. If specific allegations of misconduct had been made by the appellant in support of an application to set aside or remit the award, the ordinary process of discovery would have applied for production and inspection of documents relevant to the issue. It does not follow that the arbitrator's notes would in any circumstances be ordered to be produced.