Felicia A. Dedeke & Ors V. Victor A. Williams & Anor (1944)

LawGlobal Hub Judgment Report – West African Court of Appeal

Practice and Procedure—Originating Summons—Matter raised but undecided in original suit—Res judicata ; Estoppel ; Multiplicity of proceedings.

Facts

Petitidners took out an originating summons against the trustees asking that there should be a partition and distribution of an estate in which they and Respondents were beneficiaries. After evidence taken the summons was dismissed on the ground that the point should have been raised in Suit No. 140 /41, in which the claim was for a statement of the properties comprising the estate and a partition and distribution, and therefore Petitioners were estopped by res judicata and the rule against multiplicity of actions. On appeal it was argued that the issue raised by the summons had not been decided in Suit No. 140 /41 though raised in that suit, but was left by the trial Judge to be decided later either, in that suit or in other proceedings for convenience’ sake as relating to the trust property alone ; further that estoppel had not been pleaded by Respondents.

Held

that there having been no default of pleading or attempt to divide the matter into two in Suit No. 140/41, Petitioners were not guilty of multiplicity of actions.
Held also, that as the matter raised by the originating summons had been left by the judgment in that suit to be considered in other proceedings, there was no estoppel per rem judicatam.
Held further, that as estoppel had not been pleaded in the Court below and Petitioners had not been given an opportunity of being heard against it, that Court could not ex proprio mote hold that they were estopped.

The costs in the Court below, already incurred and to be incurred will be in the discretion of the trial Judge at the continued hearing.