Appeal Court, 18th Nov., 1940.
Case stated on the question
of a claimant's remedy after
previous striking . out of an
interpleaded 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 Judicata.
The facts are set out in the
case.
K. A. Bossman
for Judgment-Creditor.
J. H. Coltssey (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. The questions for the opinion
of the Honourable Court of Appeal
are:-
. (a) Was not the remedy
of the claimant in action No.
26/33 to apply for relisting or
review and, if aggrieved,
appeal?
(b) Not having exercised
these rights can he now bring a
fresh action in respect of the
same subject matter?
(c) Any further and other
directions which to the
Honourable of Appeal may seem
fit.
(Sgd.)
GUY COOPER,
Ag. J .
3rd
August, 1940."
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 :-
" 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."
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.
Our answers to the questions
asked are as follows :-
(a)
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.
(b)
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 ~o 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 apl1lieCl 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 ,,,e 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 11 guineas.
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