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C. S. Solomon V. T. J. Solomon (1938) LJR-WACA

C. S. Solomon V. T. J. Solomon (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim by Administratrix for an account and moneys due thereunder—Reference to referee—When objection to referee’sreport should be raised—Matter before two different Judges Appeal prior to judgment.

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

Judge making order of reference.Court.
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 and considering the report of Mr. J. R. 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,

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Solomon1938, in the presence of the plaintiff in person and Mr. Dove-

v.Edwin for defendant gave judgment in the following terms:—

T. J.” Referee finds a balance owing by Mr. S. M. Solomon

Solomon.

” (deceased) to the Company, £J53 12s. 3d

Kingdon,” Judgment for defendant accordingly.”

C.J.,Plaintiff has appealed to this Court against that judgment.
Petrides,

C.J.,The first ground of appeal is that the sum of £978 9s. 7d.

andrepresenting loss on groundnut venture was wrongly debited to

Webb, C.J. 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 a/c ” 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 :—

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 Okokon a/ c S. M. Solomon £64, ” have been withdrawn accordingly they must ” remain in the partnerships accounts.”

It is impossible to escape the conclusion that Baker, iL 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 the second referee came before the Court on the 2nd May

1938. Unfortunately the presiding Judge on that occasion was not C. S. Baker, J., who was cognisant of all the facts, but a Judge who Solomon

was a stranger to the case. The plaintiff was without counsel.v.

T. J.

The defendant was represented by counsel who has told this Solomon.

Court very frankly that he does not understand the accounts but,

as he thought that every entry should appear twice, he thought Kingdon, the accounts were all right. We also find the accounts most C.J.,

difficult to understand.Petrides,

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C.J.,

This is quite clearly a case in which the report of the referee and

should be considered by Baker, J. as he will be able to decide Webb, C.J. whether the report of the referee was in accordance with his

judgment.

We accordingly remit the case to Baker, J. to consider the report of the second referee and to take such action thereon as he could have taken had that report been considered by him in the first instance.

We set aside the judgment of the Court below of the 9th of May, 1938. Each side must bear its own costs of this appeal. All costs in the Court below to be at the discretion of the Judge who will hear the proceedings resulting from this judgment.

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