Ijale V Leventis & Co. Ltd (1965)
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This is an appeal by the plaintiff against the judgment of De Lestang, C.J., Lagos, dismissing his claim for sums amounting to £20,587-2s-8d. The appellant was employed by the respondent company as a “produce sub-buying agent” in Lagos from the 19th May, 1950, until the 12th June, 1953. He received advances for the purchase of produce, for which he was required to account, and he was remunerated by a monthly salary of £25 and by commission on the produce he bought; this remuneration was not paid to him at regular intervals, but was credited to him in the books of the company pending a settlement. On the 25th July, 1953, the company sued him for various sums, but the only claim on which judgment was given in those proceedings was a claim for:-
“1. £25,025-19s.-8d. being balance found to be due from the defendant to the plaintiffs on an account stated between them in writing and contained in a document signed by the defendant and dated 10th June, 1953 or in the alternative being money had and received by the defendant from the plaintiffs for the use of the plaintiffs, with interest thereon at the rate of ten per centum per annum until payment or judgment.”
The case was tried by De Comarmond, C.J., Lagos, who held that the document relied on as an account stated was not one, but gave judgment on the 29th November, 1955, for £25,917-17s-2d, as money had and received to the use of the plaintiffs, with interest to the date of judgment. The appellant appealed to the Federal Supreme Court, which gave judgment on the 12th May, 1959, and reduced the award to £15,260-12s-2d, by allowing £10,657-10s-0d, in respect of ungraded cocoa which had been purchased by the appellant but not credited to his account. There was a further appeal and cross-appeal to the Privy Council, which gave judgment on the 16th July, 1964, crediting only £6,500 for produce purchased and increasing the sum awarded to £19,418-2s-2d. In computing the sum awarded the various courts which considered the matter allowed the appellant not only the value of produce purchased but a credit of £600 in respect of accrued salary to the date of the termination of his employment. The credit of a sum in respect of produce purchased was in pursuance of paragraph 8 of this Statement of Defence, which reads as follows:-
“8.The defendant admits paragraph 5 of the Statement of Claim but avers that there can only be finality in the computation of the accounts when the ungraded produce which appears in the produce statement has been graded and the defendant credited with the value thereof.”
On the 14th May, 1959, two days after the delivery of the judgment of the Federal Supreme Court, the appellant instituted the present proceedings; his claim as amended was for the sum of £20,587-2s-8d, made up as follows:-
“1.Balance of overriding commission for cocoa and palm kernels short paid as per produce report books tendered in Suit No. 428/53 between same parties 310 tons, 1 cwt., 1 qrt. at 75s. per ton.£1,157 1 4 8
2.Balance of salary account May, 1950 to June 1953 at £25 per month = £950 less amounted credited in Ex.‘A’ Suit No. 428/53 = £600 Balance 35000
3.Value of 4 Lorries returned to defendant .4,00000
4.Value of graded cocoa not accounted for by defendants as per Exhibit ‘D’ and ‘E’ in Suit No. 428/53 1,120 bags (16 bags to 1 ton ) at £174-9s 12,21100
5.Labour and grading expenses on 3,586 tons, 1 cwt.lqr. at 16s. per ton .2,867180 £20,5872 8
De Lestang C.J. held that the second item and part of the fifth were proved, but that the first, second, fourth and fifth items formed part of the produce transactions between the parties and that the judgment in the previous suit estopped the appellant from putting forward the claims in fresh proceedings. He referred to section 53 of the Evidence Act, which reads-
“Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”
As the Judicial Committee said in its judgment in the former case, “In the event it became necessary to know the state of the final account between the parties”, and we agree that on the pleadings the balance of indebtedness between the parties in respect of the produce transactions was a fact directly in issue in the earlier case and that the judgment is conclusive proof of what that balance was. But the Chief Justice also cited the following passage from the judgment of the Judicial Committee in Hoystead v. Commissioner of Taxation [19261 A.C. 155, at 170:-
“The rule on this subject was set forth in the leading case of HENDERSON v. HENDERSON (1) by Wigram V.-C. as follows: `I believe I state the rule of the Court correctly when I say, that 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 circumstances) permit the same parties to open the same subject of 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, in-advertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not 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.’ This authority has been frequently referred to and followed, and is settled law.”
The final decision in Hoystead’s case has not escaped criticism, but the judgment was referred to by Lord Radcliffe in Society of Medical Officers of Health v. Hope  A.C. 551, at p.566, as “an authoritative contribution to the rule that in matters of estoppel what might have been said may be as important as what was actually said and that, as between the parties themselves, law may indeed be formed sub silentio.” The result of this rule is that even if there were difficulty in holding that the earlier judgment was conclusive evidence under section 53 of the Evidence Act on a point which was not expressly raised-and we do not consider that in this case there is any such difficulty-the earlier judgment is relevant under section 48, which provides that:-
“The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial.”
Estoppel is sometimes spoken of as a rule of evidence only, but the judgment in Hoystead’s case refers to the principle there applied as a “principle of law” (pp. 165-6) and this view derives support from what was said by Lord Wright in Canada and Dominion Sugar Co. Ltd., v. Canadian National (West Indies) Steamships Ltd.  A.C.46 [at p. 56]:-
“Estoppel is often described as a rule of evidence, as, indeed, it may be so described. But the whole concept is more correctly viewed as a substantive rule of law.”
In our opinion Hoystead’s case may be said to set out a rule of law which prevents the court from taking cognizance of these claims in the present proceedings. The Chief Justice was also of the opinion that the claims were barred under the Statute of Limitations, but we find it unnecessary to consider this point.
As regards the lorries, they formed part of the subject-matter of other proceedings brought by the respondents against the appellant in 1958. The facts were referred to a referee, who allowed the appellant credit for £186 in respect of one lorry expressly and also allowed credit for two other sums which in fact related to the other three lorries, though the referee may not have been aware of the fact. If the appellant was prepared to receive credit for these sums in those proceedings, we agree with the Chief Justice that he cannot now reopen the question. He has made no offer to make good the credits which were allowed him by the referee.
On these grounds the appeal is dismissed, and the respondents are awarded costs which we assess at 45 guineas.
Other Citation: (1965) LCN/1252(SC)