S.D. OJO V. JEAN ABADIE

Coussey; J.A. This is an appeal from a judgment of the Supreme Court of the Port Harcourt Judicial Division in an action in which the present appellant was plaintiff and the respondent was defendant. The claim was for £705, money had and received by the defendant / respondent for consideration that had failed. In his statement of claim the appellant pleaded an agreement with the respondent for the purchase of a Kit-car at the price of £990; that on the 11th March, 1952, he paid the respondent £690 on account, but that when he was prepared to pay the agreed balance at the end of March, the respondent was unable to deliver the vehicle as it had, meanwhile, got into the hands of one Kehl who had absconded with it. In addition to the £690, the plaintiff-appellant alleged that he had lent to the respondent £15 to search for Kehl and recover the car. The appellant also pleaded that when he pressed the respondent for the refund of his money the respondent instituted an action, Suit P .54/52 in the Supreme Court, Port Harcourt, claiming the sum of £300 as balance due on the contract of sale, upon an allegation that he had duly delivered the Kit-car to the appellant. That the Court had therein found, as a fact, that the respondent did not deliver the car to the appellant as alleged and dismissed the respondent's claim. In his statement of defence, the respondent admitted that his Suit referred to above was dismissed on the ground that he did not discharge the onus of proving delivery of the Kit-car to the appellant, but he averred that the appellant borrowed the Kit-car on the 11th March, that the appellant, on that day, paid £690, and promised to pay the balance of £300 on the 31st March when he brought the car back to the respondent but that it was, in fact, the appellant who passed the car on to the absconding Kehl, thereby rendering himself incapable of returning it to the respondent on the 31st March and, thereby, discharged the respondent from any further obligation to again deliver the car to the appellant, such delivery having, in the circumstances, taken place on 11th March. He admitted receiving the £15 mentioned by the appellant. On the evidence before him which preponderated in the respondent's favour, supported, as it was, by a written acknowledgment of the appellant, Ex. Ojo 2 which was not produced in the former Suit P /54/52, to the effect that he had taken the car on 11th March, the learned trial Judge accepted the respondent's evidence and, without hesitation, rejected that of the appellant and entered judgment for the respondent on terms. The learned Judge concluded his findings on the evidence by observing that he was satisfied that Exhibit Ojo 2 was not tendered in Suit P/54/52.

The learned Judge omitted, in his judgment, to deal with the appellant's plea of res judicata, and this has afforded his only substantial ground of appeal to the appellant, and one which in my opinion; this Court is compelled to sustain.

In the former action, the right of the respondent, then plaintiff, to claim the sum of £300 depended upon the issue whether or not the Kit-car had been delivered to the appellant, the defendant. In the present action, the right of the appellant, now plaintiff, to recover as for consideration that had failed, depended upon the same issue, whether the Kit-car had, or had not, been delivered.

In the former suit the Court, after hearing the evidence, determined that issue in the appellant's favour. It was, in the words of Romer J. in Shoe Machillery Co. v. Cutlan “a deliberate finding on a question fairly raised for the decision of the Court as between the two parties and fairly fought out before it; and I cannot see why the decision given by the Court then on that issue is not to bind the parties to it”.

It appears that in the former suit, through negligence, inadvertence, accident or design, the respondent, then plaintiff, failed to bring forward Exhibit Ojo 2 and other evidence which might have materially affected the result of that action. He did not appeal from the former judgment.

The respondent, has not been represented in this Court, but he would seem to contend that he was entitled, in the suit now under appeal, to retry the issue of delivery because he had discovered new materials for impeaching the former judgment. Clearly he is not so entitled, however unsatisfactory the final result may be. To employ again, the language of Romer J. in Shoe Machinery Company v. Cutlan 1896, 1 Ch. page 667 at page 672 where the defendants sought to adduce new evidence in a second action, “If he were held to be so entitled, I do not see how there could be any finality of the questions in an action. According to this contention the defendant might try his case piecemeal. He might raise such objections as he thought convenient and, when he was defeated, he might then raise other points at his leisure, and might, in that way, try the Case piecemeal, and, so far as I can see, extend it over as long a period as he pleased. In my opinion the defendant is not entitled to do that, he is bound to put his whole case before the Court; and if he does not do so, then it is his own fault or misfortune. He cannot be allowed to put part of his case, or to put his case in an incomplete manner”.

It is hardly necessary to add that when once it is made clear that the self-same question is substantially in issue in two suits, the precise form in which either suit is brought, or the fact that the plaintiff in the one case was the defendant in the other is immaterial, the estoppel subsists between the parties.

For these reasons the plaintiff-appellant is, in my opinion, entitled to the judgment of the Court. I would therefore allow the appeal, set aside the judgment appealed from and enter judgment for the plaintiff-appellant for £705 and costs in this Court and in the trial Court.

Foster Sutton, P. I concur. de Comarmond, Ag. C.J. I concur.

Appeal allowed. Judgment entered for plaintiff/appellant.