CO129-377 - Governor Sir Lugard - 1911 [5] — Page 307

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I have done se, treating that judgment as not properly before me, and

nerelore, so ar as this action is concerned, as non-existent.

De

It was contended that in reversing the judgment of the Full Court, ordering judgment 10

entered Lur Luie delengant An the Lormer action, the drivy Counen had done so on the broad ground tha Le piantaff was not a party to the agreement un respect of wulen he was sulag that he was a stranger to ine contract between the Govermen and Chu Ciuen--and Deleiore than he could not recover,

it

Now although there is a reference in that judgment to the fact that Yiu Cnow" was not a party to the agreement or in any way bound by it, the judgment is not rested on this simple proposition of aw. akes a much wider scope, and declares that I now had not at any tine any rights under the Ordinance to the reclamation, but only perhaps the sembrace o1 a right uker s. 8 (v.) to pray for compensation for injury he may have sustained from the reclamation works.

Now this action, brougn by the Government as a party to the agreement, claims the specific performance of it, and if a succeeds a wid result in a decalation that Thu Chow nad lights under the Crumance to the reclamation, and that declaration is in fact prayed for. words, mis tule is asked to declare wie existence of rigis lu i chow s successors in titie, which the Privy Conocu have expressly declared to nave been non-exis.ent Yu Chow, Un the mere statemens of the facts, one woud think at here was a clear case of res judicala.

but it was said that the grounds on winch the judgment of the Pivy Counci: was based were unnecessary to the uccis.og, and Lilerefore ubiter. but the custom of treating certain pots & cision which ne outside the issues dccrded as obiter akcia only apples where a decision is referred to in cases between other partie, au in order to pollle true limitations of the rule of precedens walen obras in Courts.

the Digisu

i have never heard it applied, anu i do not think it can appy, w a decision od te rights of the parties to an action, when those rights are again in issue. It is perfectly true that you luust ascertain tue essence of the decision; but that essence is not to be determined by the rule ot 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 men, and .though an opinion may be expressed on them, the Court kotii may say that is irrelevant. but every point on wine Lue Court ex- presses an ophion, ana which has contubuted to the judgment uncategy pronouncea, is relevant to the decision, is an integral part of it and coa cides that question front ever being litigated again outween une parties to the action. Therefore I must take the judgment of the ivy CoupoU to have declared the rights in Yiu Chow, which are now mate the basis vi the action by the Government, to have been non-existent. How neu cau 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 acuon between the same parties.

I do not think that there is any case in the books exactly on all ours with this; the question must therefore be solved by the night of general principles. Now one of the tests whether a matter is res judicata is satwshed here: that the, same evidence must support buta cases (lunter v. Stewart). For it is common ground that the subject matter the two actions and the evidence in it, are identical. No also is ite other test, that the essence of the two actions must be identicas: the essence of both actions is Yu Chow's alleged rights arising out of the agree- ment made with the Government: and both actions were in fact based on the agreement (Outram v. Morewood). So the only question is the one ut parties.

I do not know of any better definition as to who are parties to a snit, in order to satisfy the test as to identity of parties, than one given in an American case Tibbets v. Tilton: there is one sentence in that demution 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.' AUW 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 at 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 con- tract, then if A afterwards snes 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 i was alleged Yin 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 Yin Chow then sue Chu Chuen for a declaration that he had rights under the Ordinance?

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