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A. Savage & Ors V. O. Uwechia & Ors (1972) LLJR-SC

A. Savage & Ors V. O. Uwechia & Ors (1972)

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A. FATAYI -WILLIAMS, J.S.C 

On the 24th day of August, 1954, the plaintiff, at Onitsha, gave a loan of 780(pounds) to one S.O. Rotibi who promised to repay the said loan within three months and gave the plaintiff a promissory note to that effect. Just over a week later, the said Rotibi died at Owerri leaving a Will in which he appointed the three defendants his executors and trustees. Probate of the said Will was obtained on 28th July, 1956.

When the loan was not repaid, the plaintiff, in suit No. O/22/55 commenced in the Onitsha High Court, started proceedings against the defendants for specific performance of the agreement under which the deceased Rotibi promised to repay the loan. The particulars of claim in the said suit (as shown in the proceedings Ex. “C”) read:

“1. By an agreement agreement to convey made between the plaintiff and S.O. Rotibi on the 24th day of August, 1954, at Owerri, the said S.O. Rotibi agreed to convey to the plaintiff for the sum of 780(pounds) after three months from the aforementioned date his freehold property with the appurtenances there to situate at No. 6 New Market Road, Onitsha.

  1. The plaintiff has a copy of the said agreement to convey to which the plaintiff will at the trial refer for its full terms and effect.
  2. Notwithstanding repeated requests by the plaintiff’s agent, the trustees of the said S.O. Rotibi have neglected and refused to take any steps towards the completion of the said agreement to convey the said property.
  3. The plaintiff has performed his obligations to the said S.O. Rotibi (whose trustees the defendants are) which led to the said agreement to convey.”

A copy of the promissory note referred to above was admitted at the hearing of that case as Exhibit “A” and its terms read-

“Owerri, August, 24, 1954.

I promise to pay to Mattew Uwechia or order three months after date the sum of 780(pounds) for value received or in default to convey to him all these messuages together with appurtenances thereto situate at No. 6 New Market Road in the township of Onitsha, to hold the same unto the said Mattew Uwaechia or order in fee simple.

(Sgd.) S.O. Rotibi.”

The claim was dismissed in the Onitsha High Court. The plaintiff thereafter appealed to the Federal Supreme Court which allowed the appeal and made an order for specific performance. On a further appeal by the defendants to the Privy Council, the appeal was allowed and the plaintiff’s claim was dismissed (see Savage v. Uwechia (1961) 1 All ER 830). Referring to the evidence adduced before the trial court, Lord Hodson, who delivered the judgment of the Privy Council, observed at p. 831 as follows:-

“On this evidence, the case proceeded on the footing that the deceased and, after his death, the appellants, who stood in his shoes although they did not obtain probate until July 28, 1956, were in default, in that the 780 (pounds) had not been paid.”

He further observed at pp. 832 as follows:-

“It would be relevant also to take into consideration the procedure of the appellants who, though standing in the shoes of the deceased, had at the time of the default not yet obtained probate. Even if they could have raised the money before the expiration of the three months, they would have been under a duty to consider the interests of the beneficiaries entitled to share in the estate of the deceased under his will.”

Meanwhile, on 29th December, 1957, that is, before the Privy Council allowed the appeal and dismissed the plaintiff’s claim, the first defendant in his capacity as an executor of the estate wrote a letter (Ex. “B”) to all the tenants living in the house of the deceased at No. 6, New Market Road, Onitsha and sent a copy to the plaintiff. The contents of the said letter read –

“Re Mathew Uwechia Versus Late Rotibi’s Executors in court:

“1. Late S.O. Rotibi got a loan of 780pounds from Uwechia in August, 1954, but unfortunately died the following month.

  1. Mr. Uwechia wanted the storey house at 6, New Market Road at Onitsha instead of his 780pounds, he went to court and lost the case at Onitsha in December, 1955.
  2. Uwechia appealed to Lagos Supreme Court and won in March, 1957 – consequently we executors of late Rotibi have appealed to the Privy Council in London.
  3. The Lagos Federal Supreme Court granted our appeal to the Privy Council on the 22nd May, 1957, on certain conditions.
  4. …………………………………….
  5. Now, therefore in the interim, no tenant should pay any rents to the said Mathew Uwechia until the result of the Privy Council arrives early next year and especially before the case is settled by the Privy Council, whose decision is final.
  6. If we win at the Privy Council, thank and praise God; if we lose, we shall gladly convey the storey house to Uwechia immediately after such judicial pronouncement from London in the future date.
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(Sgd.) C.A. Savage

Executor of Late S.O. Rotibi

of Owerri, Eastern Region,

Nigeria.”

On 17th January, 1962, that is, about a year after his earlier claim for specific performance had been dismissed by the Privy Council, the plaintiff caused another writ to be issued in which he claimed against the same defendants the sum of 780pounds being the amount he gave on loan to the deceased Rotibi. Part of the particulars of claim reads’97

“3. On the 20th day of December, 1957, the first defendant, acting in his capacity as the executor of the testator’s estate, acknowledged in writing the said loan by the Plaintiff to the Testator in August, 1954.

  1. The Plaintiff now claims from the defendants the sum of 780pounds (Seven Hundred and Eighty Pounds) being the amount he gave on loan to the testator in accordance with the latter’s promissory note dated 24th August, 1954, and in accordance with the acknowledgment in writing of the said loan given by the first defendant to the plaintiff.”

The defendants denied liability. They also pleaded that the claim was statute barred. Other defences raised in paragraph 5 of their Statement of Defence read-

“5. Further to the defence: Defendants deny all liability and will further plead:-

(a) Res judicata in that the issue of the alleged loan has been litigated in the Onitsha High Court in Suit 0/22/55 when the plaintiff sued the defendants, not for recovery of the loan, but for specific performance i.e., to convey to him the landed property at No. 6 New Market Road, Onitsha.

(b) That in the High Court case the matter of the alleged loan was in issue but the plaintiff did not amend his Writ of Summons or his Statement of Claim but carried on his case until it was dismissed on 14th December, 1957.

……………………………

(ii) WAIVER: That the plaintiff having elected to proceed against the defendants on a wrong claim, and in the case, the question of the alleged loan was put in issue, and the plaintiff not caring to amend his claim or to plead in the alternative, and having failed in his contention in the first suit, is deemed to have waived his rights to take out a second action by changing the character of the claim and to reopen the question of the loan which was open to him at the first action but which he waived.”

After considering the evidence adduced by both parties, the learned trial Judge gave judgment for the plaintiff. In rejecting the defences of res judicata and waiver raised in paragraph 5 of the Statement of Defence, the learned trial Judge observed that all the cases referred to in Halsburys’ Laws of England, 3rd Ed. Volume 15 Articles 363 at p. 188 (where it was pointed out that a plaintiff who had once sued a defendant to judgment cannot while the judgment stands sue him again for the same cause), were cases where the plaintiff had recovered judgment against the defendant in the former case and did not deal with instances where the plaintiff had lost his case as in the case now before him. He then found as follows:-

“I am also of opinion that the causes of action are not the same, the former case being for specific performance and the recent case is to recover a debt. See Article 365 in the same book. In the case of Brunsden v. Humphery (1884) 14 QBD 141, the plaintiff brought an action in the County court for damages to his cab through the defendant’s negligence and having recovered the amount claimed, brought an action in the Divisional court against the defendant claiming damages for personal injury sustained by the plaintiff through the same negligence. The court decided that although the damages for personal injuries might have been claimed in the first action, the judgment recovered in it was no bar to subsequent proceedings as the causes of action were distinct. It may be noted that in this case judgment was again recovered in the first suit and yet the legal maxim “nemo dabet bis vexari” does not apply even though the two actions arose from the same accident caused by the same negligence.”

In the appeal now before us against the judgment, learned counsel for the defendants/appellants, contended that the loan was statute barred and that the learned trial Judge should not have treated the letter (Ex.”B”) as an acknowledgment of the debt by the executors. He further submitted that while the executors might have admitted the debt in Ex. “B”, they did not give an undertaking to pay it and so make it an acknowledgment within the Statute of Limitations of 1623.

On the issue of res judicata, learned counsel further submitted that with respect to the breach of the loan agreement, there is only one cause of action – either to sue for the recovery of the debt or to claim for specific performance. In asking for specific performance, learned counsel contended, the plaintiff should have claimed for the recovery of the debt in the alternative. Since he had failed to do so in the earlier case, he was estopped from doing so in the present case and the learned trial Judge was in error in holding that the cause of action in the two cases is not the same.

For the plaintiff/respondent, Mr. Balonwu contended that there was a clear acknowledgment of the debt in the letter (Ex. “B”) and that there was also an implied agreement in the letter to pay the debt. He then referred to Halsbury’s Laws of England, 3rd Ed. Vol. 24 Article 593 at p. 299, where because of the provisions of the Limitation Act, 1939, (which incidentally was not applicable in Eastern Nigeria at the material time and is still, so far as we are aware, not applicable there), a promise to pay the debt is no longer required in order to constitute an acknowledgment.

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With regards to the submission that there was only one cause of action, there were two remedies and if the plaintiff lost in asking for one remedy, he could still ask for the other remedy. He did not agree that the claim for specific performance arose because of the defendants’ failure to repay the loan. Finally, learned counsel pointed out that the acknowledgment of the loan made the present action different from the claim for specific performance.

We will first deal with the submission of the learned counsel for the defendants/appellants that there is substantially only one cause of action both in the claim for specific performance and also in that for the sum of 780pounds.

A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is, in effect, the fact or combination of facts which give rise to a right to sue and it consists of two elements – the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage. As Lord Esher said in Cooke v. Gill (1873) LRSCP 107 and later in Read v. Brown (1888) 22 QBD 128 (C.A.), it is every fact that it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court (See also Kusada v. Sokoto Native Authority, SC. 131/68 delivered on 13th December, 1968, where the definition in Read v. Brown (supra) was referred to with approval.)

It is trite law that a former judgment cannot operate as a bar to any subsequent proceedings between the same parties unless those proceedings are founded upon the same cause of action.

It cannot be disputed, having regard to the observations of Lord Hodson in the Privy Council, that the facts on which the plaintiff relied in his earlier claim for specific performance are the same as those he relied in the present claim or the 780pounds, the letter of acknowledgment (Ex. B) notwithstanding. The letter, even assuming that it can be regarded as an acknowledgment, merely stopped the debt from being statute barred and had no relevance to the cause of action. In either of the two claims, the plaintiff, in order to succeed, must first prove that he gave a loan of 780pounds to S.O. Rotibi (deceased) and that the loan had not been repaid within the stipulated time. On the facts accepted in both claims, there is no difference between the sum of 780pounds claimed in the present action and the property at No.6 New Market Road, Onitsha, for which specific performance was sought unsuccessfully in the earlier action, because if the plaintiff had succeeded in obtaining an order for specific performance, that house would have replaced the sum of 780pounds now being claimed. The plaintiff, under such circumstances, would not have brought the present action. We are, therefore, in no doubt whatsoever that the cause of action in both cases is substantially the same. As had been aptly put in Res Judicata by Spencer Bower and Turner, 2nd Ed. para. 458 at p. 380′

“Where there is substantially only one cause of action, and it is a case, not of ‘splitting separable demands’, but of splitting one demand into two quantitative parts, the plea is sustained. In homely phrase, a party is entitled to swallow two separate cherries in successive gulps, but not to take two bites at the same cheery. He cannot limit his claim to a part of one homogenous whole, and treat the inseparable residue as available for future use, like the good spots in the curate’s egg. And it is immaterial how innocent, or even praiseworthy, his motives may have been in adopting this course, just as, conversely, in the cases where the demands are distinct, it does not signify how bad his motives may have been. Thus, where the omitted matter is a portion of the entire sum, or an item or parcel of the entire property, recoverable on a single cause of action, the judgment is a bar to any subsequent action, in respect of such omitted matter.”

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Thus in an action for specific performance, an inquiry as to damages must be asked for at the hearing, and will not otherwise be granted on further consideration (Munro v. Finlinson 116 LT 109 referred to in the footnote to Order 43 rule 2 entitled specific performance at p. 581 of the English Supreme Court Practice (White Book), 1970).

The learned trial Judge, in holding that the cause of action is not the same, referred, with approval, to the decision in Brunsden v. Humphrey (1884) 14 QBD 141. It is interesting to note that in the Canadian case of Cahoon v. Franks (1967) 63 DLR (2nd) 274 (Supreme Court of Canada), the first Appellate Division of the Supreme Court of Alberta, and then the Supreme Court of Canada declined to follow the decision in Brunsden v. Humphrey (supra), and held that property damage and personal injury arising out of one tortous act gave only one cause of action. As Porter, JA., pointed out in his judgment in the Frank’s case in the Appellate Division of the Supreme Court of Alberta (60 DLR (2nd) 237 at pp. 238 – 40), an examination of the record in Brunsden v. Humphrey (supra) showed that it was first dealt with by two judges of the Queen’s Bench Division, (Pollock B., and Lopes, J.), who both held that there was only one cause of action for a single negligent act and damages resulting from it must be assessed in one proceeding. On appeal against this decision, three judgments were delivered, one (Lord Coleridge, CJ.), dissenting and agreeing with the court below. Of the two who delivered the majority judgment setting aside the judgment of the court below, one (Bowen, LJ.,) felt “great doubt and hesitation in differing from the judgment of the court below.” As Porter, JA., observed-

“Of the five Judges involved in the Brunsden v. Humphrey case, three disagreed with the judgment we are considering and one of the two that supported it, declared himself in doubt. Actually, the majority judicial opinion expressed in the case disagreed in the result and one other doubted. Such a conflict of reasoning cannot be accepted as making the principle of the decision persuasive to this court as far as I am concerned.”

As we had earlier pointed out, the Supreme Court of Canada agreed with this observation of Porter, JA. and declined to follow the decision in Brunsden v. Humphrey (supra). We also see no persuasive reason for following the decision.

Finally, it is our view, and this view has been expressed many times in this court, that there must be an end to litigation. To borrow the homely phrase used by Spencer – Bower and Turner, a plaintiff should not be allowed to take two bites at the same cherry. To allow the plaintiff in the instant case to do so, as the learned trial Judge had done, is to connive, albeit unintentionally, at a gross abuse of the process of the court. It makes no difference, and the learned trial Judge was in error in thinking that it did, whether the plaintiff lost in the earlier claim or not.

On this ground alone, it seems to us that the learned trial Judge erred in law in holding that the cause of action in the two cases is not substantially the same. Having so found, it is unnecessary to consider the other ground of appeal as to whether the claim was statute barred or not. It is sufficient to hold that the earlier judgment of the Privy Council in Savage and Ors. v. Uwechia (supra) is a bar to the present claim for the sum of 780pounds and we so hold.

The appeal is therefore allowed and the judgment of the learned trial Judge in suit No. O/10/62 delivered in the Onitsha High Court on 4th October, 1963, including the order as to costs, is hereby set aside. We accordingly order that the plaintiff’s claim be dismissed and this shall be the order of the court. Costs to the defendants/appellants in the court below are assessed at 60 guineas and in this court at 55 guineas.


SC.517/1965

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