Bull v Kalil, 1972-73 ALR S.L. 132

5 SECTION 20 THE AFRICAN LAW REPORTS to law after deducting any necessary fees and stamp duty. The appellants are entitled to costs, such costs to be taxed and paid by the Administrator. Order accordingly. BULL and OTHERS v. KALIL High Court (Tejan, J.): September 19th, 1972 10 (Civil Case No. 205/71) [ 1] Estoppel-record-res judicata-parties estopped from denying not only facts and issues fundamental to decision in previous proceedings but also all matters which could have formed part of case if pleaded: Parties to litigation on a given matter should plead the whole of their case at that 15 time and once final judgment has been given are estopped in subsequent proceedings from denying not only facts and issues which were funda­ mental to that decision but also all those matters which could reasonably have formed part of the case had they been pleaded (page 136, lines 6-24; page 136, line 28- page 137, line 5; page 137, lines 9-25). 20 The plaintiffs brought an action against the defendant to recover certain property. The plaintiffs were beneficiaries under the will of a testator who died in 1920. The property in question was devised to his widow as tenant for life and after her death or remarriage to the plaintiffs 25 as tenants in common. In 1951 the tenant for life executed a building lease in favour of the defendant and in 1956 she executed a supplemental lease in his favour extending the term to 91 years. She died in 1957. In 1958 the plaintiffs brought an action against the defendant 30 to recover the property on the ground that the tenant for life had exceeded her power in granting the lease. By their pleadings both parties assumed that the settlement was valid but in the course of the proceedings it appeared from the documents exhibited that the tenant for life had been one of the attesting witnesses to the 35 will creating the settlement. The Supreme Court (Bankole Jones, Ag.J.) held that the devise to the widow as tenant for life failed for this reason and that the leases were consequently invalid. The proceedings are reported at 1957-60 ALR S.L. 336. On appeal, however, the Court of Appeal held that the trial 40 judge misdirected himself in deciding the issue on facts which had not been pleaded, and upheld the lease as valid. The proceedings in the Court of Appeal are reported at 1 S.L.L.R. 167. 132 l BULL v. KALIL, 1972-73 ALR S.L. 132 H.C. The plain tiffs later began the present proceedings seeking avoid­ ance of the lease or alternatively its forfeiture on the ground, inter alia, that since the testator's widow had witnessed the will the lease she had granted in purported exercise of the powers of a tenant for life was invalid. The defendant pleaded res judicata, 5 contending that the plaintiffs were estopped from instituting the action since the previous proceedings between the two parties were on the same subject-matter and the plaintiffs could not now introduce a new matter which was not pleaded in the previous action. 10 The plaintiffs' claim was dismissed. Cases referred to: (1) Badar Bee v. Habib Merican Noordin, [1909] A.C. 615; (1909), 78 L.J.P.C. 161. 15 (2) Henderson v. Henderson (1843), 3 Hare 100; 67 E.R. 313. (3) Hoystead v. Commr. of Taxation, [1926] A.C. 155; (1926), 134 L.T. 354, dicta of Lord Shaw applied. (4) Humphries v. Humphries, [1910] 2 K.B. 531; (1910), 103 L.T. 14. 20 (5) John v. Khalil, 1957-60 ALR S.L. 336; on appeal, sub nom. Kalil v. John (1961), 1 S.L.L.R. 167, considered. Marcus-Jones for the plaintiffs; Garber for the defendants. TEJAN, J.: The plaintiffs in this action claim to be the beneficiaries under the will of James Thompson John, late of Little East Street, Freetown. 25 James Thompson John, deceased, died on or about April 26th, 30 1920 leaving a will dated December 24th, 1919. Probate of the said will was granted by the then Supreme Court to his widow, Letitia Caroline John, the sole executrix and trustee. By cl. 5 of the said will, the property in question was devised to Letitia Caroline John as tenant for life as long as she remained a widow, 35 and after her death or marriage, to the plaintiffs as tenants in common. Letitia Caroline John died on April 25th, 1957. Before her death, she executed a building lease dated December 12th, 1951 in favour of the defendant. Subsequently, on December 6th, 40 1956, she executed a supplemental lease in favour of the defend- 133 THE AFRICAN LAW REPORTS ant, extending the term of the lease to 91 years. The plaintiffs are now asking for avoidance of the lease or alternatively forfeiture of the said lease, on the grounds stated as follows in the statement of claim: 5 (a) The plaintiffs say that the tenant for life, the said Letitia Caroline John, was incompetent to execute the said lease by reason of the fact that she was a witness to the will of the said James Thompson John, deceased, and a beneficiary under it. The plaintiffs say that in the circumstances, the lease is void and of no 10 effect. (b) The plaintiffs say that by reason of the fact that the lease provided for re-imbursement of the capital moneys spent by the defendant on construction, and without prejudice to the legal position described in (a) hereof, the rent reserved by the lease is 15 against the interest of the plaintiffs, the remaindermen and ben­ eficiaries of the said property. (c) The plaintiffs further aver that they have approached the defendant for a surrender of the said lease and the restoration of their property to them, and after negotiations through the respect- 20 ive solicitors, the defendant agreed by letter dated November 19th, 1970 to surrender his lease to the plaintiffs, if the plaintiffs re-imbursed the sum spent by him on the rebuilding of the said premises. (d) By letter dated March 19th, 1971, the plaintiffs accepted 25 the terms of the surrender proposed by the defendant. (e) By letter dated April 13th, 1971 the defendant purported to repudiate the agreement for the surrender of the lease. (f) The plaintiffs say that the defendant cannot be heard to say that he is not prepared to surrender the lease by reason of the fact 30 that the plaintiffs, acting on the representations made by the defendant to them to that effect, acted thereon by, inter alia, obtaining credit facilities to pay the defendant the whole of the surrender value, and have negotiated for the leasing of the premises at an enhanced value and an economic rent. 35 Certain documents were put in evidence in the trial, by the Acting Master and Registrar, Mr. Williams, who gave evidence on behalf of the plaintiffs. Among these documents, he tendered in evidence case file C.C.633/58, and a certified copy of the judg­ ment of the Sierra Leone and Gambia Court of Appeal. 40 It will be noted that para. 6 of the statement of claim refers to a preVIous action in this matter. Paragraph 6 of the statement of 134 ' BULL v. KALIL. 1972-73 ALR S.L. 132 H.C. claim reads as follows: "The plaintiffs say that being dissatisfied with the arrange­ ment, they sought a declaration from this honourable court, that the said lease was invalid, by reason of the fact that the lease was not a bona fide exercise of the leasing powers of the 5 tenant for life, within the meaning of s.53 of the Settled Land Act, 1882. The said declaration was refused, but the lease was varied by altering the period of re-entry on non­ payment of rent to 30 days and deleting the covenant for renewal." 10 The matter contained in the case file is the matter contained in the present case. The plaintiffs in the case file are the same plain- tiffs in the case before me, and so is the defendant. The subject­ matter of the previous case is the same subject-matter as in the present case. The defendant has pleaded res judicata and is saying 15 that the plaintiffs are estopped from instituting this action, since the action which has already been finally determined was between the same parties, and on the same subject-matter. Perusing the records of the case file, it seems that after the case for the plaintiffs and that for the defendant were closed, certain 20 matters regarding Letitia Caroline John were noticed by the trial judge. The trial judge then asked counsel on both sides to address him on the matter, although the matter was not pleaded, and was in no way before him either by way of pleading or evidence. This matter which was not pleaded in that case is now pleaded in the 2 5 present case in para. 7 of the statement of claim. In the previous proceedings the trial judge gave judgment for the plaintiffs, basing his judgment on a matter which was not before him. In the judg- ment of the appeal court, Kalil v. John (5), Ames, P. said (1 S.L. L.R. at 168): 30 "The learned judge's reason for holding it to be invalid and of no effect was something which was not before him, namely that the will had been witnessed by Letitia Caroline John, who as tenant for life was a beneficiary under it. This did not arise out of the pleadings and arose when the learned judge 35 was considering his decision and had the original documents before him, the will and the lease, and came to the conclusion that the signature of Letitia Caroline John on each was that of the same person." The plaintiffs have now raised the issue that Letitia Caroline John 40 could not properly execute a lease since she could not take a 135 THE AFRICAN LAW REPORTS legacy under the will, she being a witness to the will. The defendant says that Letitia Caroline John could properly execute a lease and that the question of whether she was a witness to the will is now res judicata. In other words, the defendant is saying that the 5 plaintiffs are estopped from bringing this action. Estoppel by record is a rule whereby a party is debarred from denying the facts on which a previous judgment on the same cause of action and between the same parties or their privies was based. There is no doubt that the previous action in this case was 10 between the same parties and on the same subject-matter. What the plaintiffs now want to introduce is a new matter which was not pleaded in the previous action. The rule of estoppel is intended to ensure that there should be an end to litigation and that nobody should be twice sued in the same cause. Where final judgment has 15 been delivered in an action, a subsequent court will not permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the sub­ ject in contest, but which was not brought forward only because, from negligence, inadvertence, or even accident, they omitted part 20 of their case: see Henderson v. Henderson (2 ). Parties are pre­ cluded from relitigating the same matter on the grounds-(i) of public policy, since it is in the interest of the state that there should be an end to litigation, and (ii) hardship to the individual, that he should be twice vexed for the same cause. 25 In the case of Hoystead v. Commr. of Taxation (3) Lord Shaw, delivering his judgment in the Privy Council said ([1926] A.C. at 165; 134 L.T. at 358): "It is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh 30 litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin 35 fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted 40 litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permit- 136 BULL v. KALIL, 1972-73 ALR S.L. 132 H.C. ted, and there is abundant authority reiterating that principle. Thirdly, the same principle-namely, that of setting to rest rights of litigants, applies to the case where a point, funda­ mental to the decision, taken or assumed by the plaintiff, and traversable by the defendant, has not been traversed." 5 Lord Shaw continuing his judgment in the same case said ( [1926] A.C. at 170; 134 L.T. at 359): "The rule on this subject was set forth in the leading case of Henderson v. Henderson ... by Wigram V .-C. as follows: 'I believe I state the rule of the Court correctly when I say, that 10 where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circum- stances) permit the same parties to open the same subject of 15 litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not 20 only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.' " 25 It seems clear to me from the authorities, that the plaintiffs cannot now say that Letitia Caroline John was a witness to the will of James Thompson John, when in the previous action, they had the opportunity of doing so. Several authorities support this view: see Humphries v. Humphries ( 4) and Badar Bee v. Habib 30 Merican Noordin (1). The plaintiffs say that the defendant has agreed to surrender the lease to the plaintiffs. In support of this claim several letters were put in evidence. I have read carefully every letter put in evidence, and none appears to me to be an agreement by the defendant to 35 surrender his lease. Even if there has been such agreement, none of the letters complies with any of the rules pertaining to specific performance. Surrender may be either express or by operation of law, but no evidence has been given that such a state of affairs exists between the plaintiffs and the defendant. 40 I find that the defendant has successfully pleaded res judicata 137 5 10 15 20 25 30 SECTION 21 THE AFRICAN LAW REPORTS and that there has been no agreement to surrender by the defend­ ant. In the circumstances, I dismiss the plaintiffs' claim with costs to be taxed. Suit dismissed. SIERRA LEONE INDEPENDENCE FISHING COMPANY LIMITED v. ROCCA and BARBERA High Court (Tejan, J.): October 6th, 1972 (Civil Case No. 202/72) [1] Civil Procedure-pleading-amendment of pleadings-application nor- mally by summons but court may give leave to amend during hearing­ no amendment if would cause injustice, make substantial change in type of action or still leave plaintiff with no title to sue at date of writ: Although an application for leave to amend pleadings should usually be made by summons the court has inherent jurisdiction to give leave to amend during the hearing but should do so only if it can be made without injustice to the other party and should refuse to do so when the amend- ment would change the action into one of a substantially different kind which could conveniently be the subject of a fresh action or where the amendment would still leave the plaintiff without any title to sue at the date of the writ (page 140, line 38- page 141, line 23). [2] Civil Procedure-writ of summons-name of party-when misnomer crucial-writ issued in name of non-existent plaintiff void and such irregularity may not be rectified: An irregularity in pleadings which renders the proceedings void cannot be rectified, so that if a writ is served in the name of a non-existent plaintiff, such as a company de­ scribed as "Limited" but not in fact of limited liability, the writ is void and the defendant cannot therefore be held to waive the irregularity by entering an unconditional appearance and taking part in the proceedings before the error is discovered (page 142, lines 6-17, lines 34-40). [ 3] Companies-name-name in litigation-when misnomer crucial-writ void if issued in name of company described as "Limited" but not in fact of limited liability: See [ 2] above. The plaintiffs, suing in the name of the Sierra Leone Indepen- 35 dence Fishing Co. Ltd., brought an action against the defendants in the High Court. During the trial the defendants and the plaintiffs' counsel discovered that the plaintiffs' company had never been a limited liability company. The plaintiffs sought leave to amend the writ 40 by deleting the word "Limited'' and substituting the names of the two partners in the company. 138