Division: High Court (North)

Date of Judgment: 5th December, 1961

Case Number: Suit No. K/7/1961

Before: Reed, J.

HELD:

(1) A breach of Contract constitutes one Cause of Action only; which cause of Action may give rise to different remedies. And where a breach of contract for the Sale of Goods gives rise to one remedy for return of money paid because of total failure of consideration, and another remedy for damages both remedies must be claimed in one action, and cannot be pursued by way of two separate actions; because, where there is one cause of action damages must be assessed once and for all.

(2) If a plaintiff entitled to two separate forms of relief under one Cause of Action pursues one form of relief to Judgment, he cannot later successfully bring a separate action on the other form of relief since the matter is res judicata.

(3) Where the Cause of Action in a second action is the same as that for which the plaintiff has already obtained Judgment in the first, although the relief sought differs, the second action is not maintainable; even though the relief sought in the second action would have been in excess of the jurisdiction of the court which tried the first action; and notwithstanding that at the time the first action was commenced it was not possible for the plaintiff to estimate the extent of the damage he had suffered.

Action struck out.

Cases referred to:-

Serrao v. Noel, (1885), 15 Q.B.D. 549; 1 T.L.R. 581.

Conquer v. Boot, (1928) 2 K.B. 336; (1928) All E.R. Rep. 120; 97 L.J.K.B. 452; 139 L.T. 18; 44 T.L.R. 486.

ACTION on Contract.

Nwazei for the Plaintiff.

Grey for the Defendants.

Reed, J.:-The defendants have raised a preliminary objection that the plaintiff is estopped from bringing this action on the grounds that he has already obtained Judgment in a claim brought on the same cause of action. In the action before me the plaintiff claims damages for breach of contract by the defendants; the allegation is that the defendants agreed to sell, and the plaintiff agreed to buy, a lorry for the sum of £170 and that, in pursuance of the agreement, the plaintiff paid the defendants £170 and that the defendants failed to deliver the lorry. It is common ground that before the action was commenced the plaintiff had sued the defendants in the District Court, and had obtained Judgment, for this sum of £170 as "money paid by the plaintiff to the defendants for a consideration which has wholly failed."

Counsel for the plaintiff submits that there are two separate causes of action but I cannot agree. There is one cause of action only, the breach of contract, and that cause of action gives rise to two different forms of relief-(1) the return of the money paid because of the breach of contract and (2) damages for the breach of contract.

The doctrine of res judicata is based upon two theories-first, the general interest of the community in the termination of disputes and, secondly, the right of the individual to be protected from vexatious multiplication of suits. Accordingly, as Bowen L.J. said in Serrao v. Noel, (1885), 15 Q.B.D. 549 at 559:-

"The principle is, that where there is one cause of action, damages must be assessed once and for all."

In that case the plaintiff alleged that the defendant was detaining shares which belonged to the plaintiff. He first brought an action in the Chancery Division claiming an injunction restraining the defendant from parting with the shares and in this action the defendant consented to an order for the delivery of the shares to the plaintiff. The plaintiff later sued in the Queen's Bench Division for damages for the detention. It was held that he could not recover as the damages could have been claimed in the former action; that injunction and damages were only different forms of relief applicable to the same cause of action.

In Conquer v. Boot, (1928) 2 K.B. 336, Talbot J. said at 346:-

There are many authorities on this subject or connected with it, but they all come back to the same test, is the cause of action in the second action the same as that for which the plaintiff had Judgment in the first? If it is, the second action cannot be maintained, and (speaking generally) it is immaterial whether the plaintiff knew or might have known, when he brought the first action, the facts on which he relies in the second.

In the case before me the plaintiff could have claimed, and obtained Judgment for damages in the District Court. It does not help the plaintiff to say now that his claim for damages was in excess of the District Judge's jurisdiction; he could have avoided bringing two actions by bringing one action in the High Court claiming both relief's. Nor does it help him to say that when he commenced the suit in the District Court he could not estimate the damage he had suffered as the groundnut season had not started.

For these reasons I find that the plaintiff is estopped from bringing this action and I strike it out.

Action struck out.