CORAM
LEWIS JUSTICE, SUPREME COURT
MADARIKAN JUSTICE, SUPREME COURT
FATAI-WILLIAMS JUSTICE, SUPREME COURT
PARTIES
A.SAVAGE
SOLOMON KAYODE
S. ROTIBI(Trustees of the WILL of S.O. Rotibi)
APPELLANTS
O. UWECHIA
RESPONDENTS
AREA(S) OF LAW
WILL – PROBATE – SPECIFIC PERFORMANCE – EXECUTORS – CONTRACT – RES JUDICATA – WAIVER
SUMMARY OF FACTS
The Plaintiff loaned one S.O. Rotibi some money who promised to repay same within three months and gave the plaintiff a promissory note to that effect, but he died a week later leaving a Will wherein the defendants were appointed as his executors.
HELD
The Court held that the learned trial Judge erred in law in holding that the cause of action in the two cases is not substantially the same. 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.
ISSUES
None.
RATIONES DECIDENDI
DEFINITION OF CAUSE OF ACTION
1. “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.” FATAYI-WILLIAMS, JSC.
RES JUDICATA: WHEN INAPPLICABLE
2. “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.” FATAYI-WILLIAMS, JSC.
CASES CITED
1. Savage v. Uwechia (1961) 1 All ER 830
2. Brunsden v. Humphery (1884) 14 QBD 141
3. Cooke v. Gill (1873) LRSCP 107
4. Read v. Brown (1888) 22 QBD 128 (C.A.)
5. Kusada v. Sokoto Native Authority, SC. 131/68
6. Brunsden v. Humphrey (1884) 14 QBD 141.
7. Cahoon v. Franks (1967) 63 DLR (2nd) 274
STATUTES REFERRED TO
Halsbury’s Laws of England, 3rd Ed. Vol.