K. Onwonka V. E. J. Minaise (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Practice and Procedure—Claim and particulars disclosing no cause of action—Action dismissed Supreme Court (Civil Procedure) Rules, Order 32, rule 19.

Facts

The appellant had an agreement to buy launches from the respondent at £4,400 and gave £1,000 in advance; then he did not want the launches and sued for the return of the £1,000.

The parties settled that suit on these terms: that the respondent should sell the launches for the highest possible value, of which the respondent would be the judge; if they fetched more than £4,400 the respondent would keep the excess, and if less the appellant would bear the loss.

Some months later the respondent wrote to the appellant of the highest offer; this, answered the appellant, was too low and the sale should be delayed. Later the respondent had the launches sold by auction, and the proceeds were £750 gross and £672 5s. Od. nett. The appellant then brought this new action claiming (1) to set aside the settlement in his former suit, and (2) to recover the £1,000.

At the trial the only evidence put in was the file of the former suit (and of another suit which is not relevant hereto); and there was argument partly on res judicata and partly on pleadings: the defendant wanted issues settled as the particulars of the claim were vague, the plaintiff was arguing that the claim and particulars disclosed a good cause of action.

The Judge held that no cause of action was disclosed on claim (1) and consequently that claim (2) was resjudicata; and he dismissed the action with judgment in defendant’s favour. The plaintiff appealed.

In the appeal the plaintiff complained that he had not had an opportunity below to present his case fully: he would have tried to prove that the settlement in the former case had been entered into under a common mistake in both parties believing the market value of the launches was about £3,000.

In fact his particulars of claim narrated the events, then stated that £675 (the net proceeds) was ridiculously low and was grossly “ below what was in the contemplation of the parties when arranging settlement ”, and went on to allege
fraud at the time of the sale of the launches.

For the plaintiff-appellant it was also argued in the appeal that he should have been allowed to amend his pleadings if they did not cover mutual mistake, and that in any event Order 32, rule 19, applied and the Judge should not have gone beyond striking the case out. In fact, however, no application was made on plaintiff’s behalf in the Court below for leave to amend.

Held

(1) The appellant’s writ and particulars of claim did not contain any averment which would have entitled him to raise the issue that the parties were acting under a mutual mistake at the time of the settlement. He had an opportunity of applying in the Court below for leave to amend but did not so apply.

And as for his allegation of fraud (to support which he was not in possession of any facts), it did not relate to the time of the settlement. His writ and particulars therefore disclosed no cause of action on the first part of his claim.

(2) Order 32, rule 19, which provides for the striking out of any pleading on the ground that it discloses no cause of action, goes on to provide that the Court may (inter alia) give judgment for the plaintiff or defendant, and the Judge rightly dismissed the first part of appellant’s claim and gave judgment for the respondent.

Appeal dismissed.