(1984)1984 A p r i l 26 [L. Loizou. HADJIANASTASSIOU. MALACHTOS, JJ.J A V G O U S T A K. THEORI A N D ANOTHER. Appellants-Plaintiffs. v. MAROULLA Α. DJOM ANDANOTHER, Respondents-Dij'endants. (Civil Appeal No. 5102). Resjudicata—Pica of—It applies to everypoint properly belonging to thesubject of litigation andwhich theparties, exercisingreason ablediligence, might have brought forward at thetime. By meansof an action,whichwas institutedin 1967("the first action") by the appellants against the respondenti, the former 5 claimed ownership of certain plots of land (Nos.39/2 and 40/2) on the grounds of inheritance and undisputed possession; and onthe5thJuly, 1969aconsentjudgment was issued intheir favour and they were registered as owners in one half share each of the above plots. 10 Byasecondactionwhichwas again institutedbythe appellants against the respondents the former claimed ownership of plots 39/1 and 40/1 on the same, as inthefirstaction,grounds. The trial Court held that the appellants were estopped from raising their claims on the ground of res judicata and hence 15 this appeal. Held, that the plea of resjudicata applies, except in special cases not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment but to every point which properly belonged to the 20 subject of litigation andwhich the parties, exercising reasonable diligence,mighthave broughtforward atthetime;thatalthough it is correctthat the ownership of the property covered by plots 39/1 and 40/1 was not an issue between the plaintiffs and the defendants in the first action, the plaintiffs, admittedly, could 25
- .1 C.L.R. 5 10 15 20 Theori and Another v. Djoni and Another have raised their contention as to the ownership of these plots inthataction,inwhichtheissuewas also theownership of parts of what previously to the institution of the first action were plots 39 and 40 and to which their present claim "properly belonged"; that inthecircumstancesit was their duty toinclude it in such action so as to avoid multiplicity of proceedings; accordingly the appeal must fail. Appeal dismissed. Cases referred to: PublicTrusteev. Kenward [1967] 2 All E.R. 870; Henderson v. Henderson [1843-1860] All E.R. (Rep.) 378; Vernaekev. Smith [1982] .2 All E.R.
- Appeal. ι Appeal by plaintiffs against the judgment of the District Court of Limassol (Stylianides, Ag. P.D.C. and Chrysostomis, Ag. DJ.) dated the29th May, 1972 (Action No.3061/70) where by their action for a declaration that they weic the owners of one half share of certain properties situated at Ayia Phyla village was dismissed. P. Pavlott, for the appellant. P. L. Cacoyiannis, for the respondent. Cur. adv. vult. 25 30 L. Loizou, J. read the following judgment of the Court. This appeal is directedagainst thejudgment of the District Couit of Limassol in Action No. 3061/70 on a point raised by the defendants-respondents in their defence which, with the consent of the parties, was heard as a preliminaiy point of law pursuant to the provisions of Order 27 of the Civil Procedure Rules. By their judgment the Court disposed of the whole action by dismissing it with costs. The point raised by the respondents and decided by the Court was that the plaintiffs-appellants were estopped from raising their claims on the ground of res judicata. The relevant facts are as follows: 35 By Action No. 962/67 (to which we shall hereinafter refer as the first Action) instituted by the same plaintiffs against the same defendants as in the piesent Action, the plaintiffs in their 297 L. Loizou J. Theori and Another v. Djutii and Another
(1984)Statement of Claim alleged that they were, by virtue of inheritance and/or of continuous uninterrupted, undisputed adverse possession by themselves and/or their predecessors in title the owners of a piece of land, four donums, one cvlek and 1800sq.feet inextent, with44carob treesstanding thereon 5 at locality "Aggathidkia" area of Ayia Phyla, forming plots 39/2 and 40/2 of sheet-plan LiV/49; that the defendant 1 was the owner by virtue of inheritance of plot 39/1which abuts the plaintiffs' aforesaid propeities; that the plaintiffs' properties were wrongly icgistered in thename of defendant 1 as a result 10 of an erroneous certificate of the ex-chairman of the village commission of Ayia Phyla and that the defendant 1transferred the whole property including plaintiffs' properties in the name of defendant 2 on the 19th August,
- And the plaintiffs praytd for a declaration of theCourt that theywerethe owners 15 in one half share each of the above described properties by virtue of adverse possession and/or inheritance; an order of the Court ordering the cancellation of any existing registration affecting their properties; an order for the transfer and/or registration of the said properties in their names; and finally, 20 for an injunction and damages. After a local inquity wascarried out by the D.L.O. pursuant to anorder oftheCourt theactionwassetdownfor hearingon the 5thJuly,
- Onthat day aconsentjudgment wasissued in favour of the plaintiffs and as a result they were icgistered 25 as owners in onehalf shaveeach of plots 39/2and 40/2, sheetplan LIV/49 and of the 44 carob trees standing thereon. By their present Action (Action No. 3061/70) the plaintiffs claimed
(1)A declaration of the Court that they were the owners 30 in one half share each of the following properties with all trees standing thereon, situated at locality "Aggathidkia" of Ayia Phyla village: (
- a)Plot 40/1 of sheet-plan LIV/49, three cvleks and 1800 square feet in extent; (
- b)part of plot 39/1 of sheet-plan LIV/49, about one donum and one evlek in extent from the northern part of the said plot.
(2)An order of the Court cancelling the registration of the 298 35 1 C.L.K. Theori and Another v. Djoni and Another L. Loizou J. above described properties in the name of defendant 2 or any other person. 5
(3)An order of the Court ordering defendant 2 to transfer and register the above properties in the name of the plaintiffs.
(4)An injunction restraining the defendants and/or their agents and/or their servants from in any way interfering with the said properties. 10
(5)Any other order or remedy as the Court might consider necessary and just; and in the alternative, £8,500.- damages representing the value of the properties, In their Statement of Claim they alleged that they arc, by virtue of continuous undisputed, uninterrupted adveise posses15 sion by themselves and/or their predecessors in title and/or by virtue of inheritance or otherwise the owners in one half share each of the pioperties in question; that defendant Iwas, before 19th August, 1966 the owner of properties adjoining the plaintiffs' aforesaid properties; that due to an erroneous 20 certificate issued by the then Chairman ofthevillage commission of Ayia Phyla and/or due to an error of the D.L.O. Limassol the above described properties weie registered in the name of defendant 1 who on the 19th August, 1966, sold and transferred same in the name of defendant 2 and that defendant 2 when 25 called upon refused to transfer the said properties in the name of the plaintiffs and she continued to interfere with them. By paragraph I of their defence the defendants raised the point of law to which we have refened earlier on and at the direction stage it was agreed that such point should be heard 30 and determined by the Court asa preliminary point of law under Oder 27 of the Civil Procedure Rules. The only witness called at the hearing of the point so raised was theRegistrar ofthe DisttictCourtof Limassolwhoproduced thefileof thefirstAction. A certificate of seareh showing parti35 culaTS of the legistrations of the said properties with a survey plan of the properties in question was also produced by consent and it is exhibit 2. Copy of the pleadings in the first Action 299 L. l.oizou J. Tbecrl and Another v. Djcni and Another
(1984)as well as the drawn up judgment were attached by learned counsel for therespondents tohis defence in thepresentaction. Thereisno question andindeed it is clear from the certificate of search exhibit 2 that before theinstitution of thefirst action the whole area of both plots 39/1 and 39/2was covered by regi- 5 stration No. 17847 in the name of respondent 1and that the whole area of both plots 40/1 and40/2was covered by registra tion 17848 again in the name of respondent 1 and that they were both transferred in thenameof respondent2 on the 19th August,
- That by the first Action the plaintiffs claimed 10 plots39/2and40/2withall treesstanding thereoncovered partly by registration 17847 and partly by registration 17848 which as a result of the consentjudgment in thatactionwas registered inthenameoftheappellantsunderregistrations23022and23024 on the 5th September, 1967 and that on the same day the rest 15 of theproperty i.e. theproperty comprisingplots 39/1 and40/1 also covered partly by both registrations was registered in the name of respondent2 underregistrations No. 23023 and
- The trial Court in their judgment deal very carefully and in great detailwith all aspects of the legal pointraised andargued. 20 At p.42 of thejudgment they say: "Estoppel per rem judicatam covers not only claims actually included in the former action but also claims which could properly be included. The rule on this subject was set forth as iong ago as 25 1843 in the words of Wigram, V.C. in Henderson-vhenderson,[1843-1860] All E.R. (Rep.) 378 at p. 381 at p. 381 as follows: *I state the rule of the Court correctly, when I say, that where a given matter becomes the subject of 30 litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the partus to that litigation to biing forward their whole case, and will not (except under special circumstances) permit the same parties to optη the same subject of 35 litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was notbrought forward only because they have, from negligence, inadvertence, or even accident, 300 I CL.lt. 5 10 Theori and Another v. Djoni and Another L. Loizou J. omitted part of their cabe. The plea of res judicata applies, except in special case, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reason able diligence, might have brought forward at thetime*. This principle was adopted by the Privy Council in Hoystead & Others -»·- Taxation Commissioner, [1925] AH E.R. (Rep.) p. 56 at p. 64 and in the Fidelitas case (supra). In Greenhalgh-v- Mallard [1947] 2 All E.R. p. 255, Somervell, L.J.. in the Court of Appeal said this at p. 257: 15 20 25 30 Ί think that on the authorities to which 1 will refer it would be accurate to say that res judicata for this prupose is not confined to the issues which the Court is actually asked to decide, but that it covers issues or facts which aie so cleaTly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in icspcct of them'. This rule was applied by Buckley, J. in Public Trustee -v- Kenward [1967] 2 All E.R. p. 870 in which a Defendant sought to raise counterclaim in an administration action. Accounts and inquiry as to Defendant's indebtedness to estate had been taken. It was held: Defendant, who is seeking to raise counterclaim in action that certain assets - referred to in certificate were partnership assets in which he was interested, was debarred from counterclaiming on the ground of res judicata as he failed to raise the claim at the time of the taking of the account. In the concluding paragraph of the judgment we read: 35 'The parties, and in particular the defendant had. however, every reason to understand that the inquiiy was directed to discovering any sort of claim which he could put fonvard to reduce or counterbalance his indebtedness to his wife's estate, whether it would 301 L. Loizou J. Theori and Another r. Djoni and Another
(1984)in strictness then be called a present right of set-off or not. On these grounds, Γ think that as he did not then put forward this claim he is now barred from doing so on the ground that the matter is in fact res judicata'. 5 In Spcnccr-Bower &Turner, Res Judicata. 2ndEdition, paragraph 204 we read:'
- If the party, though omitting to bring to the notice of the judicial tribunal some fact or matter which he desires to establish or raise in subsequent 10 litigation, can show that at the time of the former proceedingshewas notonlyinfact, butalso excusably, ignorant thereof, and that such fact or matter, if then proved, would have altered the whole aspect of the case, he is entitled to claim that no estoppel by 15 implied resjudicata shall take effect, or other adverse inference of any kind shall be made against him by reason of such omission' ". And after dealing with the two actions and the claims and allegations made therein they conclude as follows: 20 "It is obvious that the Plaintiffs' claim in both Actions is based on inheritance and undisputed adverse possession. Γη both Actions the Plaintiffs claimed part of plot 39 and
- Thequestions of law andof fact raised inbothActions arethesamewithonlyoneexception: thephysical indenti- 25 ty ofthe subject-matter inthesecondAction isbutanexten sion of the claim in thefirst Action. The Plaintiffs knew and understood that the enquiry in the first Action was directedtodiscover theirclaimwithregard tothepropperties they were entitled to by virtue of inheritance and/or un- 30 disputed adverse possession, and forming part of plots 39 and
- If the Plaintiffs exercised reasonable diligence, they might have brought forward at the time of the first Action theissueraised in thepresent Action, if fromne gligence orinadvertence,omittedpartof theircase,theyare 35 not excused. They are within the ambit of the Rule in Henderson -v- Henderson (supra) whichisthe'settled'lawon the subject. In the result the claim in this Action is an abuse of the 302 I C.I,.Κ. Theori and Another \. Djoni and Another L. Lojzou Λ. process of theCourt, completely untenableand is, therefore, hereby summarily dismissed." The appellants appeal against the trial Court's judgment. 5 10 15 20 25 30 35 What learned counsel for the appellants has, in essence, challenged before this Court is the conclusion of the trial Court that res judicata applies to claims not actually included in the former action but which could properly be so included. He submitted that estoppel could only operate against a party and preclude him from raising issues which could have been raised in the previous proceedings only if the subject-matter raised in the previous proceedings was the same as the subject-matter oi the subsequent proceedings; and that the real test should not be whether the issues could have been raised in the first action but whether the basis of the two actions was the same. And although, he argued, the subject-matter of the piesent action could be included in the first action the fact that it was not so included does not mean that the plea of res judicata applies and this because what theappellants were claiming in the first action was the ownership of the land under plots 39/2 and 40/2 o\~ sheet-plan LIV/49 by virtue of inheritanceandadverse possession and that what they are now claiming i;» that in addition to the abo\e they ate, on the same giounds, the ovoieis of more pro perty, plots 39/1 and 40/1, which, though adjacent to the above. was not included in their claim in the first action; and that this being the position its judicata does not apply in thesepro ceedings because the subject-matter of the two proceedings was different; and he invited this Court to rule that in the circum stances the plea of res judicata should not be-allowed to stand. We find ourselves unable to agrc: with learned counsel's proposition. In our view it is contraiy to the principle enunciated by Wigram V.C. in Henderson v. Henderson(supra) which, in addition to thecases cited above, was quite recently approved by the House of Lords in Vervaekev. Smith [1982] 2 All E.R.
- Therefore, although it is correctthat theownership of theproperty covered by plots 39/1 and 40/1 was not an isruc between the plaintiffs and thedefendants in thefirst action,the plaintiffs, admittedly, could have raised their contention as to the owner ship of these plots in that action, in which the issuewas also the ownership of parts of what pieviously to the insitution of the .303 .. I.otzou J. Theori and Another >. Djoni and Another
(1984)irst action were plots 39 and 40 and to which their present claim "properly belonged"; and in the circumstances it was, in our νjew, their duty to include it in such action so as to avoid multi plicity of proceedings. For theabove reasons weaic inagreement with theconclusion 5 reached by the trial Court and. in the result, this appeal fails and it is dismissed with costs. Appealdismissedwithcosts. 304