Alibhai v. Fidahussein and Co. Ltd and others, Civ. Case 141-D-67: 20/10/70; Georges C.J.

Alibhai v. Fidahussein and Co. Ltd and others, Civ. Case 141-D-67: 20/10/70; Georges C.J.

The plaintiff claimed against the defendants a declaration that the partnership existing between himself and them be dissolved, accounts be taken, a receiver be appointed and one party pays to the other any sum found due on the taking of accounts. The first defendant contended that the claim was res judicata as all the remedies prayed for could have been included in an earlier suit (Civil Case 43 of 1965) in which plaintiff sued the defendants for Shs. 34,500 being salary for 25 months at the agreed of Shs. 1,500/- per month which suit was dismissed because the plaintiff as partner in the firm could not sue for wages until the partnership had been dissolved. When the plea of res judicata was raised as a preliminary point before another judge (Duff J) he held that the plea would have succeeded had the partnership been dissolved before 17^th July 1965 when the plaint was filed. On defendant’s preliminary objection:

            Held: (1) “Before me, [defendant] has argued that the learned judge clearly would have ruled that the plea of res judicata should succeed if it had been made clear that the partnership had been dis-solved before 17^th July, 1965. he then goes on the examine the pleadings to show that from the plaint it is clear that the partnership expired on or about 15^th June, 1965, from which it can clearly be inferred that it had expired by 17th July, 1965. He contends therefore, that the suit should now be dismissed on the preliminary objection, his success having been by instalments, so to speak.”

            “Attractive as the argument may appear to be, I think it is faulty …. “It is true that he agreed fully with the principles [defendant] propounded, establishing that a plaintiff must raise his entire claim in one action and not put them forward in parts in separate actions. He also indicated what he “would be inclined’ to do had he applied these principles to the instant case. But he never went on to do that. He then decided the case on what [defendant] now contends, perhaps correctly, was an erroneous view that the date of dissolution was not clear on the pleadings as they stood. In such a situation, the first defendant ought to have appealed against what he now alleges to be an erroneous conclusion based on erroneous grounds. It is difficult under stand the contention that the first defendant was satisfied with the learned judge’s ruling when the learned judge had dismissed its preliminary objection for a bad reason.” (2) “Duff, J., has ruled that the preliminary objection has failed, and that the action is to continue. If I am to order otherwise now, I would, in effect, be reversing him. I do not  think that a preliminary objection can succeed in instalments (after an earlier rejection), any more than a plaintiff can split his case into instalments launched in separate actions without running foul of the plea of res judicata.” (3) Preliminary objection fails.