K. Chellaram And Sons V. G. B. Ollivant, Ltd (1944)

LawGlobal Hub Judgment Report – West African Court of Appeal

Pleading and Practice—Estoppel—Cause of action arising after last proceeding in previous suit.

Facts

In another action brought by G. B. 011ivant, Ltd. against K. Chellaram. and Sons for infringement of a trade mark, the latter delivered up as ordered 1,300 pieces of shirting, but on 6th April, 1943, a consent order was made for their return, which was n obeyed and gave rise to a motion for contempt of Court against-G. B. 011ivant’s agent ; but this was withdrawn on 31st May, 1943, on their undertaking to hand over 432 pieces unsold and pay over the price received for the remainder. When Chellarams were later informed of the prices they were dissatisfied and brought this action (the subject of the appeal) claiming £180 for loss sustained. The trial Judge held that G. B. 011ivant, Ltd. having implemented the consent order of 31st May, 1943, Chellarams were estopped and gave judgment in G. B. 011ivant’s favour, and Chellarams appealed.

Held

that estoppel not having been pleaded in Respondents’ Statement of Defence, the judgment could not have been grounded on estoppel.

Held also, that as their claim for damages only arose after 31st May, 1943, when Appellants received the statement of prices, their claim could not have been barred by the agreement recorded on that date.

The Appellants are entitled to costs in this Court assessed at 35 guineas and the costs in the Court below are to be costs in the cause.