JELR 80567 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1944 10 WACA 164-167
Core Terms Beta
suit no.
originating summons
a. soetan
further proceedings
judgment of the court
present issue
statement of the properties
subject of this appeal
2nd appellants
administration of a trust
best course
determination of any question of construction
determination of a question of law
distribution of an estate
e. j. alex-taylor
following passage
former case
grounds of appeal
hearing of the appeal
important point
j. i. c. taylor
judge’s chambers
judgment of the supreme court
meeting of counsel
multiplicity of proceedings
opening address
original suit-res judicata
present originating summons
present petition
present question
procedure-originating summons-matter
proprio motu hold
pursuance of that order
rules of court
subject of the litigation
subject of this litigation
trial judge
trust funds
trust property
unusual course
view of the discontinuance of the farming operations

*Page 164

WAC. 2036) Practice and Procedure-Originating Summons-Matter raised but undecided in original suit-Res judicata.. Estoppel.. Multiplicity of proceedings.

Petitioners took out an originating summons against the trustees asking that there should be a partition and distribution of an estate in which they and Respondents were beneficiaries. After evidence taken the summons was dismissed on the ground that the point should have been raised in Suit No. 140/41, in which the claim was for a statement of the properties comprising the estate and a partition and distribution, and therefore Petitioners were estopped by res judicata and the rule against multiplicity of actions. On appeal it was argued that the issue raised by the summons had not been decided in Suit No. 140/41 though raised in that suit, but was left .by the trial Judge to be decided later either, in that suit or in other proceedings for convenience’ sake as relating to the trust property alone; further that estoppel had not been pleaded by Respondents.

Held, that there having been no default of pleading or attempt to divide the matter into two in Suit No. 140/41, Petitioners were not guilty of multiplicity of actions.

Held also, that as the matter raised by the originating summons had been left by the judgment in that suit to be considered in other proceedings, there was no estoppel per rem judicatam.

Held further, that as estoppel had not been pleaded in the Court below and Petitioners had not been given an opportunity of being heard against it, that Court could not ex proprio motu hold that they were estopped.

Appeal by Petitioners from the judgment of the Supreme Court in Suit No. 94/1943.

A. Soetan (with him E. J. Alex-Taylor) and J. I. C. Taylor for 1st and 2nd Appellants. I. F. Cameron for 3rd Appellant. O. Moore for 4th Appellant. A. Soetan for 5th Appellant.*Page 165J. E. David for Respondents.

The judgment of the Court was delivered by Brooke, J. :- These proceedings were commenced by originating summons which though strictly not provided for m our Rules of Court is in practice the usual procedure where a person claiming to be interested in a Will applies to the Court for the determination of any question of construction arising under that Will or of matters arising in the administration of a trust, but they took an unusual course in that Counsel called witnesses other than persons who had sworn affidavits and attended for purposes of cross-examination and thus they assumed the appearance of a suit. They related to the Will of one F. E. Williams who died in Lagos about the 12th of November, 1918, and the Petitioners and Defendants are beneficiaries under that Will and the Defendants are also the trustees appointed by the Court in 1940: the question sought to be determined is whether in view of the discontinuance of the farming operations and general business of the testator the powers and appointments under the Will and the trust created in clause 10 thereof have not failed and whether or not it .is desirable and in the interests of the beneficiaries as well as consistent with the intentions of the testator that there should be a partition and distribution of all the real and personal properties of the testator among those entitled. After evidence had been taken and argument heard, judgment was given dismissing the action on the ground t that the Petitioners were estopped by the rule with regard to multiplicity of actions in that the point properly belonged to the subject of the litigation in Suit No. 140/41, and the -Petitioners, if they had exercised reasonable diligence, should have raised the point in that suit and that the doctrine of res judicata applied. The passage in the judgment reads:-

“Without considering the question whether some of the questions in the present petition have not been answered by the above judgment and are accordingly ,res-judicata I am of opinion that the subject of this litigation could and should have been brought forward in the Suit No. 140 of 1941.”

The grounds of appeal are two of which the first alleges a misdirection in the passage just quoted in that the original suit was for a statement of the properties comprising the estate and a partition and distribution whereas the” suit the subject of this appeal “ sought the determination of a question of law” which is more within the province of an originating summons than an action”: the second ground was that the plea of estoppel was never raised by the Respondents.

Counsel for the Appellants have stated from the Bar of this Court that after the judgment in the original suit, which was upheld on appeal, there was a meeting of Counsel representing all persons interested in the Judge’s Chambers when the Judge intimated that, in his view, the best course was that the present question should be decided upon an originating summons and that that course ,vas agreed to by the parties. Against this Counsel*Page 166for the Respondents, who was unable through illness to be present at the hearing of the appeal, intimated to the Court, through Counsel holding his brief, that he never agreed to the present originating summons being issued.

The Judge in the original Suit No. 140/41 did not decide the present issue, and it is clear from the following passage in his judgment, both that the present issue was actually raised m that suit, and that the Judge thought it could be decided either in that suit or in further proceedings :-

“The sole point I have to decide at the present stage of the proceedings is whether the last named devise (in clause 12 of the Will) is in any way controlled by or subject to the two previous clauses as contended by the surviving trustees and the other defendants with the exceptions of Nos. 4 and 7 or whether it is entirely independent of those clauses as contended by the rest of the parties. In the former case the properties named in it will not fall for distribution so long as the trust subsists, a question which may have to be decided later on in the present or other proceedings; in the latter case there is obviously no reason why distribution should be further delayed.”

The learned trial Judge in that case decided that the devise contained in Clause 12 was in no way controlled by or subject to the preceding clauses and ordered that the properties to which the former clause referred should be sold when they had been exactly ascertained and the proceeds distributed according to its provisions. From this it is clear that there was here no default of pleading or attempt to divide the matter into two and thus multiply litigation; there was a further question which arose to be determined and it may have been thought inconvenient to deal with the question of the trust which only covered a portion of the properties in those proceedings: these further proceedings appear to have been taken by way of originating summons for this very purpose. Counsel in his opening address in the Court below remarked: “I am asking the Court to deal with the Trust Funds alone.”

The present judgment the subject of this appeal, as it stands, would debar the beneficiaries from having this important point regarding the trust determined and it is accordingly impossible to uphold the decision as to an estoppel per rem judicatum. The appeal must therefore succeed on the first ground.

It must also succeed on the second ground, in view of the fact that the question of matter of estoppel being constituted was never raised at any time in the Court below and Counsel had no opportunity to be heard thereon.

It is a cardinal rule of pleading and of the law of estoppel that a party re1ying upon estoppel, must, where there are pleadings, specifically plead it, and, where there are no pleadings, must raise it by word of mouth at the earliest possible stage of the proceedings. The object of the rule is to prevent the other party being taken by surprise and to give him full opportunity of meeting the plea. We think it follows that a Court cannot hold, ex proprio motu,*Page 167that a party is estopped, when no question of estoppel has been raised, without at least giving the party against whom it may operate an opportunity of being heard against it.

The appeal is allowed; the judgment of the Court below including the order as to costs is set aside, and it is ordered that, if any costs have been paid in pursuance of that order, they shall be refunded; the case is remitted to the Court below for the determination of the issue or issues raised upon the proceedings.

The Appellants are awarded costs in this Court as follows:- The first two Appellants 35 guineas. The 3rd Appellant 15 guineas. The 4th Appellant 15 guineas. The 5th Appellant 15 guineas. all payable out of the estate.

The costs in the Court below, already incurred and to be incurred will be in the discretion of the trial Judge at the continued hearing.