Claim by Administmtrix for an account and moneys due there­ under-Reference to referee·- 'When objection to referee's report should be raised-Matter before two different Judges prior to judgment.

Held: Case remitted for consideration of referee's report by trial

Judge making order of reference.

There is no need to set out the facts.

D. Hagley (for Wells Palmer) for Appellant.

C. W. Clinton (J. C. Zizer and G. F. Dove-Edwin with him) for Respondent.

The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBB, C.J., SIERRA LEONE.

Plaintiff in her capacity as Administratrix of the personal property of the late Sarkis Michael Solomon claimed against the defendant for

(1) an account of the partnership transactions carried on at Calabar and elsewhere in Nigeria between the late Sarkis Michael Solomon and the defendant under the name or style of T. J. Solomon and S. N. Solomon.

(2) payment of the amount found due to the plaintiff by the defendant on the taking of such account.

In the course of the hearing Mr. J. R. Potter, Accountant of Messrs. Elder Dempster Lines, Limited, Calabar, was appointed a Referee to go into the accounts 'Of the partnership and to report to the Court.

After hearing evidence ana considering the report of Mr. J. H. Potter, Baker, J., came to certain conclusions which are recorded in his judgment and ordered that the accounts be forwarded to Mr. Potter's successor for him to deduct £400, which he found wrongly included, and to present a report showing the amount found to be due to the plaintiff for which judgment must be given. When Mr. Woodhouse, Mr. Potter's successor filed his report, Baker, J. was absent on leave.

The report came before Pearson, J. who on the 9th May, 1938, in the presence of the plaintiff in person and Mr. Dove­Edwin for defendant gave judgment in the following terms:-

" Referee finds a balance owing by Mr. S. M. Solomon "(deceased) to the Company, £953 l2s. 3d " Judgment for defendant accordingly."

Plaintiff has appealed to this Court against that judgment.

The first ground of appeal is that the sum of £978 9s. 7 d. representing loss on groundnut venture was wrongly debited to the partnerships account. After carefully considering the evidence and the reasons of Baker, J. for finding as he did we are satisfied that we should not be justified in disturbing this finding of facts which he arrived at after hearing the defendants evidence.

The second ground of appeal concerns a sum of £386. This amount is shown in the account of both referees as a disbursement of the partnerships:-

"By cash loaned late Mrs. Radho Anthony aIc

" S. M. Solomon £386."

Plaintiff's case was that, as the firm had obtained judgment for this debt, the personal account of S. M. Solomon could not be debited therewith. Joseph Solomon in the course of his evidence said "with regard to the cash loaned to the late Mrs. Radho " Anthony I produce the book in which it is shown." The record shows that immediately this was said "Mr. Clinton states that " they withdraw their objections to this and it will now appear in " the partnerships account."

Baker, J. dealing with this item and another of £64 stated in his judgment:-

" Objections taken to the following items on page 2 of " the general account namely cash loaned late Mrs. " Radho Anthony ale of S. M. Solomon £386 and " cash loaned Mr. Okokon alc S. M. Solomon £64, "have been withdrawn accordingly they must " remain in the partnerships accounts."

It is impossible to escape the conclusion that Baker, J. intended that this £386 should remain in the partnership accounts as a disbursement but be expunged as a debit from S. M. Solomon's personal account but it has not been.

The appellant complains and it appears possible that other items which Baker, J. directed should remain in the partnerships accounts also appear wrongly as a debit in S. M. Solomon or in Mrs. C. S. Solomon's personal account.

The proper occasion for objections to be raised to the report of the second referee is not in the Appeal Court but when the report of tile second referee came before the Court on the 2nd May, 1938. Unfortunately the presiding Judge on that occasion was not Baker, J., who was cognisant of all the facts, but a Judge who was a stranger to the case. The plaintiff was without counsel.