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I have done so, treating that judgment as not properly before me, and therefore, so far as this action is concerned, as non-existent.
It was contended that in reversing the judgment of the Full Court, ordering judgment to be entered for the defendant in the former action, the Privy Council had done so on the broad ground that the plaintiff was not a party to the agreement in respect of which he was suing, that he was a stranger to the contract between the Government and Chu Chuen, and therefore that he could not recover.
Now although there is a reference in that judgment to the fact that Yiu Chow was not a party to the agreement or in any way bound by it, the judgment is not rested on this simple proposition of law. It takes a much wider scope, and declares that Yiu Chow had not at any time any rights under the Ordinance to the reclamation, but only perhaps the semblance of a right under s. 8 (vi) to pray for compensation for injury he may have sustained from the reclamation works.
Now this action, brought by the Government as a party to the agreement, claims the specific performance of it, and if it succeeds it will result in a declaration that Yiu Chow had rights under the Ordinance to the reclamation, and that declaration is in fact prayed for. In other words, this Court is asked to declare the existence of rights in Yiu Chow's successors in title, which the Privy Council have expressly declared to have been non-existent in Yiu Chow. On the mere statement of the facts, one would think that here was a clear case of res judicata.
But it was said that the grounds on which the judgment of the Privy Council was based were unnecessary to the decision, and therefore obiter. But the custom of treating certain points in a decision which lie outside the issues decided as obiter dicta only applies where a decision is referred to in cases between other parties, and in order to point the true limitations of the rule of precedent which obtains in the English Courts. I have never heard it applied, and I do not think it can apply, to a decision on the rights of the parties to an action, when those rights are again in issue. It is perfectly true that you must ascertain the essence of the decision; but that essence is not to be determined by the rule of law which the parties themselves may apply to it. A Court may decide a question by several modes: some points may be referred to in the judgment, and although an opinion may be expressed on them, the Court itself may say that it is irrelevant. But every point on which the Court expresses an opinion, and which has contributed to the judgment ultimately pronounced, is relevant to the decision, is an integral part of it, and concludes that question from ever being litigated again between the parties to the action. Therefore, I must take the judgment of the Privy Council to have declared the rights in Yiu Chow, which are now made the basis of the action by the Government, to have been non-existent. Can this action be maintained? It is said, because this action is between different parties, and the general principle is that res judicata can only be pleaded in an action between the same parties.
How then
I do not think that there is any case in the books exactly on all fours with this; the question must therefore be solved by the light of general principles. Now, one of the tests whether a matter is res judicata is satisfied here: that the same evidence must support both cases (Hunter v. Stewart). For it is common ground that the subject matter of the two actions and the evidence in it are identical. So also is the other test, that the essence of the two actions must be identical: the essence of both actions is Yiu Chow's alleged rights arising out of the agreement made with the Government; and both actions were in fact based on the agreement (Outram v. Morewood). So the only question is the one of parties.
I do not know of any better definition as to who are parties to a suit, in order to satisfy the test as to identity of parties, than that given in an American case Tibbets v. Tilton: there is one sentence in that definition which seems to be appropriate to this case: "all who have a mutual or successive relation to the same rights are bound by a judgment."
Now apply that test to this case: Yiu Chow sued Chu Chuen for a declaration that he was entitled to the reclamation in front of sections B and D, in virtue of this agreement, or alternatively in virtue of the Ordinance. It is held that he is not entitled on either ground; but not solely for the reason that he was not a party to the agreement.
Now, in the first place, I am by no means sure that the Government should not have been made a party by either Yiu Chow or Chu Chuen; but I pass that by.
But now comes the Government and sues Chu Chuen for a declaration that Yiu Chow is entitled to the reclamation in virtue of the agreement, or alternatively in virtue of the Ordinance. Is not Yiu Chow's position one of successive relationship to the same rights?
This much must be taken for granted: if A contracts with B to confer a benefit on C, if C sues B and judgment is given against him because, and for this reason alone, he was not a party to the contract, then if A afterwards sues B, clearly there is no res judicata. But this case cannot be treated in so simple a fashion. This agreement was not simply to confer a benefit on Yiu Chow, but to confer on him the rights which it was alleged Yiu Chow had under the Ordinance. Now suppose that the first action had been brought by the Government, and judgment had been given against the Government on the ground that Yiu Chow had no rights under the Ordinance, could Yiu Chow then sue Chu Chuen for a declaration that he had rights under the Ordinance?
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I have done so, treating that judgment as not properly before me, and therefore, so far as this action is concerned, as non-existent.
an
It was contended that in reversing the judgment of the Full Court, ordering judgment to be entered. for the defendant in the former action, the Privy Council had done so on the broad ground that the plaintiff was not a party to the agreement in respect of which he was suing that he was a stranger to the contract between the Government and Chu Chuen-and therefore that he could not recover.
It
Now although there is a reference in that judgment to the fact that Yiu Chow" was not a party to the agreement or in any way bound by it," the judgment is not rested on this simple proposition of law. takes a much wider scope, and declares that Yiu Chow had not at any time any rights under the Ordinance to the reclamation, but only perhaps the semblance of a right under s. 8 (vi) to pray for compensation for injury he may have sustained trom the reclamation works.
Now this action, brought by the Government as a party to the agreement, claims the specific performance of it, and if it succeeds it will result in a declaration that Yiu Chow had rights under the Ordinance to the reclamation, and that declaration is in fact prayed for. In other words, this Court is asked to declare the existence of rights in Yiu Chow's successors in title, which the Privy Council have expressly declared to have been non-existent in Yiu Chow. On the merc statement of the facts, one would think that here was a clear case et les judicata.
But it was said that the grounds on which the judgment of the Privy Council was based were unnecessary to the decision, and therefore obiter. But the custom of treating certain points in a decision which lic outside the issues decided as obiter dicta only applies where a decision is referred to in cases between other parties, and in order to point the true limitations of the rule of precedent which obtains in the English Courts. I have never heard it applied, and I do not think it can apply, to a decision on the rights of the parties to an action, when those righte are again in issue. It is perfectly true that you must ascertain the essence of the decision; but that essence is not to be determined by the rule of law which the parties themselves may apply to it. A Court may decide a question by several modes: some points may be referred to in the judg- ment, and although au opinion may be expressed on then, the Court itsest may say that it is irrelevant. But every point on which the Comb ex- presses an upon, and which has contributed to the judgment urimate, y pronounced, is relevant to the decision, is an integra part of it and cou- cludes that question from ever being litigated again between the parties to the action. Therefore I must take the judgment of the Privy Council to have declared the rights in Yin Chow, which are now made the basis of the action by the Government, to have been non existent. can this action be maintained? It is said, because this action is between different parties, and the general principle is that res judi, ata, can only be pleaded in an action between the saine parties.
How then
I do not think that there is any case in the books exactly on all lours with this; the question must therefore be solved by the sight of general principles. Now one of the tests whether a matter is res judicata is satisfied here: that the, same evidence must support butir cases (Hunter v. Stewart). For it is common ground that the subject mattes of the two actions and the evidence in it, are identical. bo also is the other rest, that the essence of the two actions must be identical: the essence of both actions is Yiu Chow's alleged rights arising out of the agręc- ment made with the Government: and both actions were in fact based ou the agreement (Outram v. Morewood). So the only question is the one of parties.
I do not know of any better definition as to who are parties to a suit, in order to satisfy the test as to identity of parties, than que given in an American case Tibbets v. Tilton: thero is oue sentence in that deinition which seems to be appropriate to this case: "all who have a mutual ur successive relation to the same rights are bound by a judgment.
Now apply that test to this case:--Yiu Chow sued Chu Chuen for a declaration that he was entitled to the reclamation in front of sections B and D. in virtue of this agreement, or alternatively in virtue of the Ordinance. It is held that he is not entitled on either ground: but not solely for the reason that he was not a party to the agreement.
Now in the first place I am by no means sure that the Government should not have been made a party by either Yiu Chow or Chu Chuen: but I pass that by.
But now comes the Government and sues Chu Chuen for a declaration that Yin Chow is entitled to the reclamation in virtue of the Is not Yiu agreement, or alternatively in virtue of the Ordinance. Chow's position one of successive relationship to the same rights?
This much must be taken for granted: it A contracts with B to confer a benefit on C, if C sues B and judgment is given against him because, and for this reason alone, he was not a party to the con- tract, then if A afterwards gues B, clearly there is no res judicata. But this case cannot be treated in so simple a fashion. This agreement was not simply to confer a benefit on Yiu Chow, but to confer on him the rights which it was alleged Yin Chow bad under the Ordinance. Now suppose that the first action had been brought by the Government, and judgment had been given against the Government on the ground that Yiu Chow had no rights under the Ordinance, could Yiu Chos then sue Chu Chuen for a declaration that he had rights under the Ordinance?
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