012-SLLR-SLLR-1987-1-GEORGINA-PARIS-v.-CATHERINE-THERESA-FLORENCE.pdf
GEORGINA PARIS
v.CATHERINE THERESA FLORENCE
COURT OF APPEAL.
G. P. S. DE SILVA. J. (President. C/A), GOONEWARDENA, J. AND PRIYANTHAPERERA, J.
A. 306/75 (F).
C. NEGOMBO 1261/L.
SEPTEMBER 29. 1986.
Res judicata – S. 207 Civil Procedure Code – Doctrine of merger in Judgment – Formerrecovery.
Whatever is laid down, as held, or ordered, within the four corners of a decree cannotbe debated again in a subsequent action between the same parties or their privies.
The right or cause of action set up in the suit is extinguished merging in the judgmentwhich is pronounced. The result is that no further clg.im may be made upon the samecause of action in any subsequent proceeding between the same parties or their privies.The doctrine of merger in judgment gives rise to what is termed a plea of formerrecovery. Recovery however means no more than recovery of the right, as judiciallydeclared, to the relief granted: it does not mean physical or actual recovery of themoney or other relief awarded by the judgment. Everything which happens afterwardsin relation to its enforcement or fruition is irrelevant.
Where in a previous suit the plaintiff had obtained a decree of declaration of title to aland, ejectment and damages against a defendant, he cannot afterwards sue him againfor the same relief in respect of the same land giving a different date of dispute. Section207 of the C.P.C. bars such an action and operates as res judicata. The plea of formerrecovery is entitled to succeed in such a case though execution in the former casefailed.
Cases referred to:
Samichi v. Pieris – (1913) 16 NLR 257. 266.
Morais v. Victoria – (1968) 73 NLR 409. 412.
Wimalasekera v. Dingirimahatmaya – (1937) 39 NLR 25.
Welasipillai v. Kanapathipillai – (1941) 42 NLR 522.
Blair v. Curran – (1939) 62 CLR 4.
Kendall v. Hamilton – (1879) 4 App. Cas. 504 HL. 526.
King v. Hoare – (1844) 13M&W494. 504.
Kirikitta Saranankara Thero v. Medagama Dhammananda Thero – (1954) 55 NLR313. 315.
APPEAL from judgment of the District Judge of Negombo (on reference under Article146(3) of the Constitution).
Dr. H. W. Jayewardene. Q.C. with Lakshman Perera and Miss T. Keenavinna forsubstituted-defendant-appellant.
J. W. Subasinghe, P. C. with Bimal Rajapakse. Miss S. Seneviratne and Miss KalyaniPriyawatta for substituted-plaintiff-respondent.
Cur. adv. vult.
November 14, 1986.
G. P. S. DE SILVA, J. (President, C/A)
This is an appeal referred to a Bench of three Judges in terms ofArticle 146 (3) of the Constitution. The question for decision relates toa plea of res judicata taken by the substituted defendant-appellant.
The plaintiff filed this action in November 1967 for a declaration oftitle, ejectment and damages in respect of the land described in theschedule to the plaint. The title pleaded was the final partition decree,dated 1 9th November, 1946, entered of record in case No. 11886 ofthe District Court of Negombo. The plaintiff further averred
that on 12th April, 1958 he had filed case No. 19673, D. C.Negombo, against the same defendant for declaration of title,damages and ejectment from the land which is the subjectmatter of the present action;
that case No. 19673 proceeded to ex parte trial on 18.9.59 inthe absence of the defendant, and judgment was entered inplaintiff's favour. (The decree nisi, dated 18.9.59 wasproduced marked P3 and the plaint was marked P4)
that on 9th February, 1960, the said decree nisi was madeabsolute (P3a);
that his efforts to execute the decree were unsuccessful andultimately, the court by its order, dated 6th November, 1967,refused his application for the re-issue of the writ on the groundthat he failed to exercise due diligence on the last precedingapplication.
In paragraph 8 of the plaint, the plaintiff further averred that-
"the decree entered of record in the said case No. 19673 D.C.Negombo is res judicata as between the plaintiff anddefendant"
Dr. Jayewardene, counsel for the substituted defendant-appellant,stressed the fact that there was a further averment in the plaint thatthe defendant is in unlawful occupation of the land from 9th February,1960, to the plaintiff's loss and damage assessed at Rs.25 per month(para 8). The plaintiff prayed for not only a declaration of title andejectment but also for damages in a sum of Rs.25 per month from 9thFebruary 1960 until the defendant is ejected and the plaintiff is placedin possession.
The defendant in his answer, while seeking a dismissal of theplaintiff's action and a declaration that he is entitled to the land byprescription, pleaded inter alia:
"That as a matter of lawthe plaintiff should have executed the
decree entered by this court in case No. 19673 and ejected thedefendant and recovered damages. The plaintiff cannot and is nowestopped by law from filing a separate action against this defendantto obtain the same reliefs." (Paragraph 9 of the answer)
At the trial the following issues were raised on behalf of thesubstituted plaintiff
Is the substituted plaintiff entitled to the land described in theschedule to the plaint, on the title pleaded in the plaint and/orprescriptive possession?
Is the decree in case No. 19673 of this court, res judicatabetween substituted plaintiff and the substituted defendant?
Since 9.2.60, did the deceased defendant dispute the title ofthe deceased plaintiff to the said land?
What amount of damages is the substituted plaintiff entitled to?
The District Judge answered issues 1, 2 and 3 in favour of theplaintiff, and on issue 4, granted the plaintiff damages in a sum ofRs. 25 per month. The substituted defendant has now appealedagainst the judgment.
At the hearing before us. Dr. Jayewardene, counsel for thesubstituted defendant-appellant, relying on issue No. (2), contendedthat the previous action filed by the plaintiff is a bar to the presentaction. Counsel's submission was that once the plaintiff obtained adecree in his favour in the earlier action, he should have proceeded toexecute that decree and that it was not open to him to file the presentaction in view of the provisions of section 207 of the Civil ProcedureCode. In short. Dr. Jayewardene argued that upon the entering of thedecree in case No. 19673, the cause of action was "exhausted" andall the reliefs claimed were also "exhausted". Dr. Jayewardeneemphasised that in the earlier action, which admittedly was againstthe same defendant and which was in respect of the same land as inthe present action, the defendant was ordered to pay damages “untilthe plaintiff is restored to possession" (vide P3, the decree nisi in caseNo. 19673).
On the other hand, Mr. Subasinghe, argued that the plea of resjudicata must fail for the reason that the plaintiff relied on a continuing •cause of action; that each day the defendant remained in unlawfuloccupation of the land, a fresh cause of action arose; that while theplaintiff pleaded in the earlier action that the date of unlawful entry was18th February 1957, in the present action he relied on a differentdate, namely 9th February, 1960. The validity of this submission hasto be considered having regard to the provisions of section 207 of theCivil Procedure Code and the terms of the decree entered in favour ofthe plaintiff in the previous action (P3).
Section 207 reads thus:
"All decrees passed by the court shall, subject to appeal, when anappeal is allowed, be final between the parties; and no plaintiff shallhereafter be non suited".
Pereira, J. in Samichi v. Pieris (1), referring to section 207observed:
"What section 207 of the Civil Procedure Code enacts is that,primarily, all decrees shall be final between the parties. This is thesubstantive enactment in the section, meaning that whatever is laiddown, as held, or ordered, within the four corners of a decree
cannot be debated again in a subsequent action between the sameparties. Then comes the explanation, which says that every right ofproperty or to relief of any kind which can be claimed or put in issuebetween the parties to an action upon the cause of action for whichthe action is brought cannot afterwards be made the subject ofaction between the same parties for the same cause. Theseconcluding words are important, and they must be given a meaning,and their only meaning appears to be that, as regards the incidentaland collateral matters mentioned in the explanation, the decreewould be res judicata only where, another action is attempted onthe same cause of action". (The emphasis is mine).
What then are the matters which were "laid down, as held, orordered" in the decree in the earlier action? It was ordered anddecreed-
la) that the plaintiff be declared entitled to the land in suit;
{b) that the defendant be ejected from the premises and theplaintiff be placed in quiet possession thereof;
(c) "It is further ordered and decreed that the defendant do pay theplaintiff the sum of Rs. 260 being damages up to 18th March1958 and further damages at Rs. 20 per month until theplaintiff is restored to possession".
It is thus manifest that the plaintiff in his previous action obtained adecree for continuing damages until the plaintiff is restored topossession of the land which is the subject matter of the presentaction. The damages decreed are clearly on the basis of a continuingwrong which results in damages. There can be no other basis for theaward of such damages. It seems to me that Dr. Jayewardene is rightin his submission that the fact that the cause of action is a continuingone is necessarily involved in, and covered by, the terms of the decreeentered in the previous action. Therefore Counsel's submission thatthe substantive enactment in section 207 of the Civil Procedure Codeis a bar to the present action is entitled to succeed. A party cannotre-agitate a matter which by necessary’implication is concluded by thedecree in the previous actionInterest reipublicae ut sit finis litium.
It appears to me that the "cause of action" in the two suits are intruth the same. Sirimane, J. in Morais v. Victoria (2) stated-
"The 'cause of action' in a suit for declaration of title to land flows
from the right of ownershipIt consists of the denial of the title of
the owner to that land, and his being prevented from possessingthat land. The two acts together constitute the wrong for whichredress may be sought".
The denial of the title of the plaintiff and the fact of his being kept outof possession continued throughout from the time of the institution ofthe earlier action. By purporting to plead a different date of unlawfulentry into the land from that pleaded in the earlier action, the plaintiffcannot, in the circumstances of this case, claim that he had come intocourt in the present action on a "cause of action" different from thatpleaded in the earlier action. In substance, the "cause of action" is thesame in both suits.
Mr. Subasinghe relied on the judgment of Maartensz, J. inWimalasekera v. Dingirimahatmaya (3). The precise question thatarises in the instant appeal did not arise for consideration in that case.That was an action for declaration of title, for a decree of possessionand for ejectment. The plaintiff had brought a previous action againstthe same defendants and obtained a declaration of title but had notprayed for a decree of possession. The argument that the plaintiff wasprecluded from seeking a decree in ejectment as he had not prayed forit in the first action was rejected by Maartensz, J. However, in theappeal before us the plaintiff had in his earlier action prayed for andobtained a declaration of title, a decree in ejectment, and continuingdamages until he is restored to possession. As submitted by Dr.Jayewardene, Wimalasekera's case (supra) (3) could therefore bedistinguished from the case before us.
I accordingly hold that the decree in the previous action operates asres judicata and that the plaintiff cannot have and maintain this action.
I therefore allow the appeal, set aside the judgment of the DistrictCourt and dismiss the plaintiff's action. The substituted defendant isentitled to costs of appeal fixed at Rs. 315.
GOONEWARDENA, J.
The facts pertaining to this appeal are set out in the judgment of G. P.S. de Silva, J. the President of this Court which I have had theadvantage of reading in draft. I think it is appropriate to express myviews upon some aspects of the argument placed before us.
Mr. Subasinghe for the substituted plaintiff-respondent contendedthat after the entering of a decree absolute on 9.2.1960 against thedefendant in case No. 19673(P3A) there was a cause of action(which he described as a continuing cause of action) which accrued tothe plaintiff to sue the defendant afresh, on the basis that on every dayafter that date that the defendant continued to be in possession of thepremises, such possession gave rise to a new cause of action.
Dr. Jayewardene for the substituted defendant-appellant referred usto the doctrine of merger in judgment, with respect to the saiddecision in the earlier case No. 19673, and pointed out to the reliefsought and obtained by the plaintiff against the defendant in thatearlier case. Such relief was a declaration of title to the premises infavour of the plaintiff; an order to eject the defendant therefrom and todeliver possession thereof to the plaintiff; damages up to the time ofinstitution of action; and continuing damages up to the time ofrecovery of possession payable by the defendant. The relief claimed inthe instant action it is observed is identical, being a declaration of titleto the premises, a decree for restoration of possession thereof, anddamages till recovery of possession.
Since the principal argument of Dr. Jayewardene revolved aroundthe effect of this doctrine to the position arising upon the presentcase, and having regard to the issue relating to res judicata raised atthe trial, some special attention in my view should be paid to thequestions then involved. Before doing so I venture to express my viewthat the law relating to res judicata in this country, if it does not alreadyembody this doctrine of the English law, is wide enough toaccommodate it.
In Samichi v. Peiris (supra) (1) two of the judges that constituted theFull Bench that decided the case (Lascelles, C.J. and Wood Renton,J.) were of the view that our law of res judicata is not limited to thatfound in the appropriate provisions of the Civil Procedure Code, whilethe other judge, Perera, J. was prepared to concede that such law in
certain circumstances could be supplemented by the English law. Thisview, that the provisions of the Code are not exhaustive of the law ofres judicata, was echoed in the later case of Welasipillai v.Kanapathipillai (4).
.The doctrine of merger in judgment gives rise to what is termed aplea of 'former recovery' and is exhaustively dealt with in "TheDoctrine of Res Judicata" by Spencer Bower and Turner, the secondedition of which is the work referred to here. In the introduction atpage 1, the doctrine is explained thus:
" by virtue of the decision the right or cause of action
set up in the suit is extinguished, merging in the judgment which ispronounced. Transit in rem judicatam. The result is that no furtherclaim may be made upon the same cause of action in anysubsequent proceedings between the same parties or their privies".
As Dixon, J. said in Blair v. Curran (5i (H. Ct of Aus) at page 532:
"The very right or cause of action claimed or put in suit has in thefirst proceedings passed into judgment, so that it merged and hasno longer an independent existence".
Lord Penzance explained the effect of the doctrine in Kendall v.Hamilton (6) thus:
"When that which was originally only a right of action has been
merged into a judgmentthe judgment is a bar to an action
brought on the original cause of action".
The principal theoretical basis and justification of this rule, which itdoes not share with the doctrine of estoppel per rem judicatam(estoppel by res judicata), can be gleaned from the words of BaronParke in King v. Hoare (7) (at page 504):
"The cause of action is changed into matter of record, which is ofa higher nature, and the inferior remedy is merged in the higher".
The two doctrines on the other hand are said to share as their basis ofjustification the theories expressed in the two maxims, interestreipublicae ut sit finis litium (the general interest of the community inthe termination of disputes and in the finality and conclusiveness ofjudicial decisions) and nemo debet bis vexari pro uno et eadem causa(the right of the individual to be protected from vexatious multiplicationof suits).
The aspect of this doctrine of relevance to the present appeal isexpressed in Spencer Bower and Turner (ibid) articulating the effect ofthe authorities thus (at page 364)-
"A former recoveryis established by proof that the party
against whom the plea or bar is set up has in previous
litigationobtained a judgment for the same relief as that
which he is claiming in the present litigation".
and at page 365:
"'Recovery', however, means no more than recovery of the right,as judicially declared, to the relief granted: it does not mean physicalor actual recovery of the money or other relief awarded by thejudgment. The original cause of action is merged in the judgment assoon as it has been pronounced; it follows that everything whichhappens afterwards, in relation to its enforcement or fruition isirrelevant. Accordingly, it has been held that a plea of formerrecovery, otherwise good, is nonetheless so merely because theformer judgment was infructuous, the judgment creditor beingeither unwilling, or unable, to obtain satisfaction by payment,execution…"
I find it difficult then to reconcile the resultant effect of what Mr.Subasinghe contended for with the position arising in law, as appearsfrom what I have just stated. The original judgment in the said caseNo. 19673 constituted the 'former recovery’ which was a right asjudicially declared, to the relief granted there to the plaintiff. I havealready referred to the relief he so obtained and it is useful toemphasize that his failure to secure enforcement of such relief wasirrelevant. Upon proof of his having 'obtained a judgment' for thesame relief as that which he is claiming in the present litigation the pleaof 'former recovery' operated against the plaintiff and he was thenprecluded from seeking to duplicate the relief so obtained in the earlieraction, in the present one.
Mr. Subasinghe relied strongly on the judgment of Wimalasekera v.Dingirimahatmaya (supra) (3). There it was shown that in an earlieraction the plaintiff had obtained the relief of a declaration of titlesimpliciter, without a decree for delivery of possession. It was heldthat he could maintain the later action seeking a declaration of titlealong with a decree for delivery of possession. One can readilyunderstand that this decision does not come into conflict with what Ihave stated earlier, when viewed from thestandpoint of the reliefgranted, the 'former recovery' not being co-extensive with the reliefclaimed in the latter action, as it was unaccompanied by a decree fordelivery of possession.
With respect to his submission based upon a continuing cause ofaction Mr. Subasinghe relied upon a passage in the case of KirikittaSaranankara Thero v. Medagama Dhammananda Thero (8) whichreads
"but there is much to be said for the argument that a
continuing invasion of a subsisting right constitutes in truth acontinuing cause of action."
It is doubtful whether that statement, which in realiiy was no morethan an expression of opinion with respect to a particular situation inthat case, can be said to have any application to the case we areconcerned with. It was made there, with reference to a plea set upagainst the plaintiff who sought a declaration of status as incumbentof a Buddhist temple, that his ca-.se of action was prescribed.Gratiaen, J. said (et the same page):
An action to be declared entitled to the incumbency of a Buddhist
temple is an action for a declaration of statusThe'cause of
action' is the 'denial' of the plaintiff's status because it constituteseither an actual or seriously threatened invasion of his vestedrights."
A continued 'denial' of a status, one may perhaps say, is a'continuing cause of action' but, whether the description is altogetherapt with respect to the position of one kept out of possession ofproperty, such as in the instant case, is in my view doubtful. As I see it,the only sense, if at all, in which one may possibly understand thatexpression with respect to the case of a person wrongfully kept out ofpossession of property, is to say that it is, a continuation of one andthe same original cause of action, rather than a new cause of actionarising every day on which such person is kept out of possession, aswas the contention of counsel.
I concur with the view expressed by G. P. S. de Silva, J. that insubstance the cause of action is the same in both suits and hold thatthe decree in the earlier suit operates as res judicata between theparties in the latter.
The appeal is allowed.
PRIYANTHA PERERA, J. – I agree.
Appeal allowed.