Civil Procedure - Objections- Time for raiaillf4 objections to
Accountant's account of eartnership.

Civil Procedure - Framing of Issues - Accounting action"- Additional
Issues framed by Board of Merchants during investigation of
account and not objected to oy parties- Whether maY be considered
on retrial,

Evi dence - Account- Board 01 ).!erchants' report- Accoulltant' s report.

III IlIII act! on between p I aa uti ff and d e f end an t, for a partnershi p
account? sublUitted~ defeudanty beinl/, the accouutiu2 partys suumit.ted
very il!complete account a, Plainti ff' s accounts were complete. The
Trial Court sent the matter to an nccouut.ant for a rep'ort? upon which
five points of dispute were raised? but defendant took. no .object:.ion

to the report on the basis that it included i~PlDS outside the partner~
busirress. .By c ou s errt , the matter waR then referred to a Board of I
Merchants₉ whi ch made a report sh owi n& that plai uti ff 'fas indeht~d to
def endant in the sum of LEo 188. The Tri III Court proceeded to r eope
the account. On apllli cati 011 f'o r revi si on to the Court of Appeal9 it
was

(i) rh~ Court should have limited the part.ies to the five pOints

of dis~ute on the accountant's report, and should uot have
allowed plaintiff to allege after the Hoard's re~D~t ~hat

the a e e ouu taut 9 s re,JOrt co at ar lied )t t. ems out 8i de th e ,:>ar.1jltersh
business. Th e time for objecti ons to the report had passe

(ii) Defendant~ who was the ouly one in a positioll to ~eep all
ac co uut s and whose accounts were iucolDjJlete, has the hur-d sr,
of proof, and 1111 presumptions must be made 1l~lliil8t him.

(iii) Since the lJ06r'd went outside its tenns of reference to me.ke

a separate report on items admittedly outside the partnershi~
business and neither party objected, the court was at liberty
to cou s i d e r- the same~ and the parties to raise objections.

(i v) Where partnership ac ccuut s are in such a s t.a t e that a full
dissolution account by Ellilish standards is not possibles and
t.he accounts are referred to a Hoard 01 Merchants, the

deci si 011 sh o u l d be maintained by the court unless it. call be
shown to be manifestly wro~i'

x Court I Creed, L.S, 9 Evans, J. and ClIIl1in&s, J.

fact for the purpose of this application is that the first defelldant did not
then ta.il:.e any obj:>ction whatsoever to the accountant's account on the &round tha
it COil tai ned i tema "hi ch were not in the pe rtnershi p, but were simtJly between
the plaiutiff and first defendant alone.

The judge could not then dispose of tho disputed items, as the
accounts of the first d ef'endarrt ~'l~r~ so bad, and the matter vias by
consent of the pa~{ies referred to a Board of Merch~1ts, probably the
only tribunal ~1hich could deal sat isfact orily Vii th disput ed point G in
such accounts. These merchants did a great deal of :Iork for no remUIl~
eration Nhatever, and produced a report, 1'lhich showed that they had
investigated the matters in dispute very carefully, and they made a
decision showing that the sum of LE.188 '-las due from the first d.ef'endarrt
to the plaintiff. lihen that report came up for con::::idoration in cour-t ,
the judge began to go right tl~ough all the aCeO~'1t3 ~gain fro~ the
beginning with the ~arties, a.'1d finding confusion and difficulties in
the w~ of preparing rul apple-pia-order English partnership account in
dissolution (has such an account ever been made in a Sudan j)artners.Up
like this?) made the order complained of.

In my opinion the judge itlas wrong in tV/o respects (A) He s11·)u:·'::'
have confined the parties to the five points they disputed origin.allYg
and in particular he should not have al.Lowed the first d ef'endarrs to !:ay
that there Here items in the accountant 'a report Hhich d i.d not COnC~I':"l
the partnership, but solely the first defendant and the plaintiff. Not
only had tho time passed for making such an ob j act i on , but the fact that
it was not.made at once on the accountant's report throws doubtG on i~s
bona fides. (B) In considering the five points he should have proceeded
on the basis that the decisions of the Board ehoul.d be accepted, unless
he "las satisfied that the Board was wrong, that everything in doubt
should be presumed against the first defendant, and that the plaintiff
should not be ordered to clear it up at his peril. In my opinion tho
suit should now proceed' on that basis.

The Board, realizing that it was going outside its terms of r-ef'ez-en oe ,
but laudably anxious to clear up all matters between the plaintiff 301'1·i

the first defendant, also made a separate aocount of certain transactio~e
l~hich had taken place between the parties, other than those l~hich are

now alleged by the plaintiff to be private and not partnership tra..'1saoti')ns.
Neither party objects to this separato account being put into this suit,

and the court is at liberty to allow this, as tho second defendan~ has

. in fact nothing to do \~ith the suit in so far as the partnership is
concerned, as has boon explained before. But when considering the Board's
report on this separate account, the parties ,,/ill be at large to criticise,
except tlmt the first def~ldant cannot claim to introduce into it those

in the learned jud[:;e's judgment. I am not sure; I am satisfied,
hovrevor , that ev,)rything possible to this end chou'Id be done. I sec
no cb jcct i on - and every advarrt ege - in aiming at tha.t standard.

Applicationa.l.Lowed ,