Sowartey Tagoe & Ors V. Theophilus Kwablah Otibo & Anor (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Case stated on the question of a claimant’s remedy after previous striking • out of an interpleader action—question of a fresh action considered.

Held : The remedy of the Claimant after his first action had been struck out, was to apply for relisting or review, or to appeal or to bring a fresh action. The Order striking out the cause from the cause list does not operate as Res Jadicata.

The facts are set out in the case.

K. A . Bossman for Judgment-Creditor.

. H. Coussey (with him A. W. Kojo Thompson) for claimant

The following opinion was read

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

The following is the case stated for the opinion of this Court :—

1. This interpleader action was commenced on May 28th, 1940. On July 12th I dismissed the action for the reasons which hereinafter appear.
2. In August, 1933 Interpleader Action No. 26 of 1933 was instituted by the present claimant against the present judgment-creditor in respect of the attachment of the same land which is the subject matter of action No. 15 of 1940. The causes of action in the two cases are identical.
3. After 46 adjournments No. 26 of 1933 came before me for hearing on March 10th, 1939, when Counsel for the claimant asked for a further adjournment as his witnesses were not ready. I refused this application and in accordance with Cap. 4 Schedule 3 Order 34 Rule 2 ordered that the cause be struck out. I added that so far as I was concerned I would not restore it to list. (Copy of entry in record attached ‘ A’).
4. No application to restore to list was made and no application was made to review the order.
5. Not till May, 1940 did the claimant take any steps when he instituted the present action No. 15 /40 which is identical with the action struck out.
6. This action I dismissed for the reasons set out in my written judgment attached (‘ B ‘). I have nothing to add to these reasons except that if the claimant can bring a fresh action there seems no reason why he should not go on bringing actions ad infinitum and suspend the sale of the attached property indefinitely.
7. ” 7. The questions for the opinion of the Honourable Court of Appeal Tagoe & are :—anor., etc.
8. Was not the remedy of the claimant in action No. 28 /33 to applyv.
9. for relisting or review and if aggrieved. appeal ?Otibo
10. posu
11. Akk
12. Not having exercised these rights can be now bring a fresh action (Cla^a imant) in respect of the same subject matter ?
13. Any farther and other directions which to the Honourable Court Kingdon,
14. of Appeal may seem fit.Petrides and
15. Graham
16. Paul, C.D.
17. ” (Sgd.) GUY COOPER,
18. if Ag• J.
19. ” 3rd August, 1940.”
20. Before answering the questions submitted to us, we must point out that the correct procedure in stating this case has not been followed. Section 6 of the West African Court of Appeal Ordinance (Cap. 5) is in the following terms :-
21. ” In addition and without prejudice to the right of appeal conferred by, this Ordinance, the Judge of a Divisional Court may reserve for consideration by the Court of Appeal, on a case to be stated by him, any question of law which may arise on the trial of any suit or matter, and may give any judgment or decision, subject to the opinion of the Court of Appeal, and the Court of Appeal shall have power to hear and determine every such question.”
22. In the present proceedings the learned Judge in the Divisional Court, instead of giving judgment subject to the opinion of this Court, has given a final judgment. That judgment can, of course, be reviewed or appealed against in the light of this opinion.
23. Our answers to the questions asked are as follows :—
24. The remedy suggested was open to the Claimant, but it was not his only remedy. He could also appeal without prior application to relist or review, or he could bring a fresh action.
25. Yes. The order striking out the cause from the cause list does not, in our opinion, operate as a judgment dismissing the action on the merits as does a judgment under Order 34, Rule 2, of the Rules of the Supreme Court of England (Armour v. Bate, 65 L.T. page 137) and consequently does not operate as res judicata. If, however, the Claimant attempted to pursue the course suggested in paragraph 6 of the case stated namely, bringing fresh actions ad infinitum and so suspending the sale of the attached property indefinitely, that would be vexatious and amount to an abuse of the process of the Court, so that such fresh actions could be struck out or dismissed on those grounds. The answer to this question is, of course, subject to the provisions of Rule 26 of Order 44 of Schedule 3 to the Courts Ordinance (Cap. 4).

(c) Upon a case stated this Court merely expresses its opinion, and does not ordinarily issue directions, except as to costs before it.

There is, however, one matter to which we think we should refer. It is the addition by the judge in the Court below to his order striking out the original cause of the words ” and so far as I am concerned I will not relist it.” This was, in effect, prejudging an issue which was not then before the learned judge but which might well come before him later. If the plaintiff had applied to relist, it is clear that this express prejudging of the issue would be an unanswerable ground for an application that the issue as to relisting should be decided by another Judge. The Judge had therefore disqualified himself for performing what might become his duty.

We think it most desirable that the principle that a Court or a judge should not prejudge an issue which may come before it or him should be strictly observed. It is in obedience to this principle that we refrain from expressing any opinion as to the propriety or otherwise of the order striking out the first cause for non-appearance of the plaintiff when the plaintiff had appeared by Counsel and asked for an adjournment.

The Claimant is awarded costs in this Court assessed at II guineas.