Referee's report-Evidence admitted by Judge for" what it is worth" and then not considered-Where Referee's Report rejected in toto the parties should be given an opportunity to tender evidence to replace that so rejected.

field: Appeal allowed and case remitted to the Court below to hear such further evidence on the issue of res judicata as the parties might wish to offer.

There is no need to set out the facts.

C. W. Clinton for Appellants, Defendants in the first two cases and Plaintiffs in the third case.

S. B. Rhodes and T. E. Nelson Williams for Respondents. The following joint judgment was delivered:-

BUTLER LLOYD, ACTING C.J., NIGERIA, CAREY AND BROOKE, JJ.

This is an appeal from a judgment of Martindale, J. in three consolidated cases in favour of the plaintiffs in the first two cases and for defendants in the third.

On the appeal coming on for hearing it appeared to us that the first ground of appeal which is in the following terms :-

" The learned Judge was wrong in law in first accepting the evidence given before the Referee and afterwards without indication thereof to the parties or their Counsel and after the parties had closed their respective cases to reject the same when considering his judgment since the defendants in Suits Nos. E.14/37 and 15/37 and plaintiff In Suit No. E.16/37 having given evidence before the Referee to establish their plea of res judicata and estoppel on the part of their opponents and the Court having first accepted the evidence taken by the Referee offered no further evidence to prove that the parties in the previous Suits in the Provincial Court, Okigwi, Nos. 4/20 and 11/20 and Native Court, Uruala, Suits Nos. 66/33 and 67/33 and in the Suits now on appeal were the same or are privies and that the land the subject matter in those previous Suits and the Suits now on appeal is the same as it was understood that the only evidence required before the Judge was evidence to prove damages or no damages as claimed by plaintiffs-in Suits Nos. E.14/37 and E.15{37."

was likely to dispose of the whole matter. We therefore requested counsel for both sides to argue on it before going into the other grounds of appeal.

Having heard argument on this ground only we are of opinion that the judgment of the learned trial Judge cannot stand.

The matter had been remitted to a Referee the evidence before whom was mainly directed to the issue of res judicata. At the trial both sides objected to the admission of the proceedings before the Referee but the learned Judge admitted them" for what they are worth."

He having done so the parties were entitled to assume that the evidence given before the Referee would be considered by the learned Judge and the evidence actually tendered before him was, mainly at any rate, directed to the issue of trespass. Yet when he came to deliver judgment the learned trial Judge rejected the proceedings before the Referee in toto. We think that having done so he ought to have afforded the parties an opportunity of tendering evidence on the res judicata issue to replace that which he now rejected. The appeal must be allowed and the case remitted to the Court below to hear such evidence on this issue as the parties may desire to offer.

The following Order was made :-

The appeal is allowed with costs in this Court assessed at 60 guineas. The order as to costs in the Court below is set aside and payment out of the amount deposited ordered.

Costs in the Court below both of the hearing and rehearing to abide the final result.