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ent: De Sampayo J. and Looa A.J.
EEBNANDO v. DE MEL et al.
143—D. C. Colombo, 47,785.
Surveyor appointed arbitrator, in action for definition of boundaries—Payment of half of survey fee by one party before commencingwork—Misconduct.
An action for definition of boundaries was referred to a surveyorfor arbitration. When referring the matter to 'the arbitrator, theConrt ordered that* the costs of arbitration should; in the firstinstance, be paid by both parties in equal shares..Before he
commenced his work, the arbitrator wrote to the prootors on bothsides to pay Bs. 75 for survey fees. The plaintiff paid Bs. 37.60.The defendants promised to pay, but did not do so.
Held, that in the circumstances the receiving- of the fee from theplaintiff only did not amount to misconduct.
Fernando v. Migel Appu 1 considered.
'J1 HE facts appear from the judgment.
A. St. V. Jayawardene (with him Cooray), for plaintiff, appellant.
Bawa, K.G., for defendants, respondents.
March 20, 1919. De Sampayo J.—
The plaintiff and the first defendant (the wife of the seconddefendant) are the respective owners of two houses which adjoineach other. There being some dispute between the parties as to theline of division, the plaintiff brought this action for the definitionof boundaries. In the course of the trial the parties agreed that thecase should 'be referred to the arbitration of Mr. S. Sabharatnam,who is a licensed surveyor, and the Court issued a commission toMr. Sabharatnam accordingly.
The arbitrator entered upon the arbitration and made his award,which happened to he in favour of the plaintiff. On notice beingissued of the filing of the award, the defendants- applied, by petition,that the award be set aside on the ground that the arbitrator hadvisited and surveyed the lands on July' 27, 1918, without notice tothe defendants and in their absence, but .in the presence of theplaintiff and his witnesses;- that the plaintiff had misled the arbitra-tor by giving him wrong data, and by pointing out wrong boundaries,and that they accordingly refused to take part in the subsequentarbitration proceedings on August 17, 1918.
1 (1913) 16 N. L. B. 157.
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Fernando,v. Do Mel
The Court inquired into these allegations, and in the course ofthe proceedings it transpired that the arbitrator had asked for andobtained from the plaintiff a moiety of the expenses of the surveybefore he commenced the work. The arbitrator admitted that heasked both the parties to pay Rs. 75 for survey'fees and not forfee as arbitrator, that the plaintiff had paid his share of Rs. 37.50, andthqt the defendants promised to pay their share when some moneywas drawn from the Savings Bank. The District Judge acceptedthe surveyor’s statement, and was satisfied that the arbitrator wasin no way influenced by the receipt of part of the survey fee fromthe plaintiff, but he said that he felt himself bound, though reluc-tantly, to follow the decision in Fernando v. Migel Appu,1, and to holdthat the receipt of the money from the plaintiff constituted “ legalmisoonduct.” On this ground, and not on the grounds put forwardby the defendants in their petition, the District' Judge set asidethe award.
Before dealing with the law applicable to the matter, I shouldlike to say that it is quite clear that the arbitrator acted in perfectgood faith, and his award was not tainted by any bias in the plaintiff’sfavour. His survey and the proceedings were very elaborate, andshowed very careful work on his part. The Court when referringthe matter to the arbitrator had ordered that the costs of arbitrationshould, in the first instance, be paid by both parties in equal shares.It is difficult to say what it means by “ in the first instance ” asregards time of payment. The arbitrator, however, appears tohave considered he was entitled to ask for payment at least of theexpenses of the survey before making his award, and so he wrote a,letter to the proctors of both parties in the following terms: —
“ I have received the commission in case No. 47,785, D. C.Colombo. Please send me a cheque for Rs. 75 to enable me tosurvey the land for the purpose of this commission. This includessurvey fees and for disbursements, but does not include arbitrationfees, which will be Rs. 52.50.”
It is on this letter that the plaintiff paid half the amount men-tioned, viz., Rs. 37.50. The defendants promised to pay, but didnot. It is impossible to hold, whatever may be meant by “ legalmisconduct, ” that there was any element of bias on the arbitrator’spart.
In Fernando v. Migel Appu'1 the facts were that the arbitratorreceived his full fee as arbitrator from one party before he made theaward, and that the other party refused to be responsible for his fee,and Laseelles G.J., who decided the case, thought that althoughthere was no imputation of dishonesty against the arbitrator, nor anyallegation that he was in fact influenced in the award by the fee hereceived, there was legal misconduct, because any act would amount
1 (1913) 16 N. L. R. 167.
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to a legal misconduct if it gave rise to a reasonable probabilitythat the arbitrator would be subjected to any improper influence.Then, the question is one of fact, and I need only say that Fernandov. Migel Appu 1 is distinguished from the present case in respect offacts, because the circumstances here show no reasonable probabilitythat the arbitrator would be influenced in his award by the plaintiffpaying his share of the survey fees which both parties agreed to payin advance. I also venture to think that the decision goes beyondwhat has been laid down by the English Courts, whose rulings onsuch a subject are a guide to us. In re Hopper 2. one of the partieshad given a dinner to the arbitrators and the umpire, at which theumpire enjoyed himself, not wisely, but too well, and the award ofthe umpire in his favour was impeached on the ground of misconductand partiality. Lord Chief Justice Cockbum said: “If it couldbe made clear that the object of Wrightson, one of the parties, ininviting, the arbitrators and umpire to go and partake of the hospi-talities at his house, had been to corrupt the umpire, or if we couldsee that the hospitalities thus bestowed upon the umpire had thateffect and had in any way influenced the award he made, I quiteagree that would be a very sufficient reason for setting aside theaward, blit I cannot believe, looking at all the circumstances, thatthe object and intention of Wrightson was to corrupt the umpire,and I do not see the slightest reason for supposing that the umpirewas in any way influenced by the hospitality he had received. Theaward for this reason was upheld.” Mosley v. Simpson* was alsoa case where one of the parties had given luncheons to the arbitrators.Vice-Chancellor Malins quoted the above case with approval, andalso Crosley v. Clay,4 where the Court had said: “ Nothing is allegedhere to sustain the charge of misconduct. To induce the Court tcinterfere on such a ground there must be something more than meresuspicion,”, and Vice-Chancellor proceeded to deal with the factsand said:' “ It is clear from their statement in the evidence theywere not corrupted. Therefore, there has not been any corruption inthat respect, and consequently, on that ground, I am unable to setaside the award.” In the present case it is obvious, and it'is the Dis-trict Judge’s own view, that the payment of half the survey fees wasnot' made with the object of influencing the arbitrator in his award,and that the arbitrator was, in fact, not so influenced, and conse-quently there was no misconduct which justifies setting aside of theaward upon that ground. I may add that the expression “ reason-able probability ” occurring in Fernando v. Migel Appu 1 appears tocome from Eckersley v. The Merey Docks and Harbour Board,4 whereit was quite relevant, because the objection was to the very referenceto the arbitration of a person named in a contract who was said to be
1 (1913) 16 N. L. B. 157.* L. R. 16 Eg. 326.
*L.B. 2 Q. B. 367.4 5 O. B. 581.
* (1894) 2 Q. B. 667.
Fernandov. De Met
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Fernando9. DeMd .
likely to be prejudiced. But I do not think it is quite applicableto a case where reference has already been made and award filed.
I would set aside the order appealed from, and send the case back,in order that the District Judge may consider any other ground ofobjection to the award and dispose of the action accordingly. Theappellant is, I think, entitled to the costs of the day in the Courtbelow and of this appeal.
Boos A.J.—I entirely agree.
FERNANDO v. DE MEL et al