Graham Paul, C.J., (Sierra Leone) :- The Defendants-Respondents sued the Plaintiffs-Appellants in the Supreme Court claiming an injunction to restrain the Plaintiffs-Appellants from infringing a certain trade mark. In that action on 21st November, 1942 judgment was entered under which the Plaintiffs-Appellants were ordered to deliver up to the Defendants-Respondents 1,300 pieces of shirting with the infringing trade mark, and delivery was made in accordance with that judgment.
On 6th April, 1943 the said order of 21st November, 1942 was varied and the Defendants-Respondents by consent were ordered to redeliver the 1,300 pieces of shirting to the Plaintiffs-Appellants. The Defendants-Respondents failed to comply with this order and a motion was filed by the Plaintiffs-Appellants to commit the Agent of the Defendants-Respondents for contempt of Court.
On that motion coming before the Court on 31st May, 1943 the following was recorded by the Court :- “Withdrawn on Plaintiffs undertaking to hand over the 432 pieces remaining unsold for obliteration of the offending marks and to pay over to Defendants the price received for the balance of the 1,300 pieces delivered under the order dated 29th November, 1942.
W. B. Lloyd , Judge”..
Thereafter tile Defendants-Respondents delivered to the Plaintiffs-Appellants the 432 pieces of shirting remaining unsold and paid to the Plaintiffs-Appellants the amount which they had received for the balance of the pieces of shirting, thereby implementing their part of the Court-recorded agreement in respect of which the Plaintiffs-Appellants withdrew their motion to commit.
The Plaintiffs-Appellants however, when they were later informed of the prices at which the Defendants-Respondents had sold the said balance of the pieces of shirting were dissatisfied with such prices and after some correspondence they brought the action which is the subject of the present appeal. In this action the Plaintiffs-Appellants claimed that they had suffered damage by the Defendants-Respondents converting to their own use and wrongfully depriving the Plaintiffs-Appellants of their goods, i.e the 868 pieces of shirting. The Plaintiffs-Appellants claimed the I sum of £180 being the loss sustained by them as a direct consequence of the wrongful sale by the Defendants-Respondents. The learned Judge in the Court below has held that by reason of the implementing by the Defendants-Respondents of the Court- recorded agreement of 31st May, 1943 the Plaintiffs-Appellants are estopped from bringing the present action and has on that ground entered judgment for the Defendants-Respondents. From that judgment the Plaintiffs have appealed to this Court.
For two reasons we are unable to agree with the judgment of the Court below. In the first place where Defendants wish to rely on estoppel they must plead it and there was no such plea in the Statement of Defence in this case. In the second place the claim in the present action was not before the Court in any form in the previous suit. The Appellants filed a motion m the previous suit for the committal of the Agent of the Respondents for contempt; but withdrew that motion on certain conditions. The implementing of these conditions would, no doubt, operate to bar any subsequent motion to commit the Respondents’ Agent for contempt on the same grounds but it cannot possibly be regarded as a bar to the present claim which is an entirely different matter and has never been the 1 subject of judicial investigation or decision between the parties.
The present claim is one for damages, the basis of it being that instead of delivering the 1,300 pieces to the Appellants as ordered by the Court the Respondents sold 868 of them at prices whichrepresent £180 less than the Appellants would have realized if the said 868 pieces had been delivered in accordance with the order of the Court. That claim was not, and could not be, made until the Appellants had received from the Respondents a statement showing at what prices they had sold; and that statement was not received by the Appellants until after 31st May, 1943, which is the date of the Court-recorded agreement which the learned Judge has found to operate as estoppel to bar this claim.
For these reasons, the judgment of the Court below is set aside including the order as to costs and any costs paid thereunder are to be refunded. The case is sent back to the Court below to take evidence upon and decide the issues raised on the pleadings on their merits. The Appellants are entitled to costs in this Court assessed at 35 guineas and the costs in the Court below are to be costs in the cause.