22/23
Civil Procedure ii
. Other Situations
The next question we have to consider is whether a person should be bound by a
judgment in a prior suit where the party in the subsequent suit was not a party to the
former suit, and is not claiming under a party to that suit.
The question is whether a party who has raised a matter once may re-litigate the same
matter in the subsequent suit involving a different party. Some courts elsewhere have
held that, at least in civil suits, he may not do so. So, where the customer sued the
manufacturer, claiming damages for injuries caused by allegedly defective products, and
in prior suit by him against the retailer, the court found that the product was not the cause
of his injuries; he was not permitted to sue the manufacturer. In other words, a party who
has litigated a question once should not be able to litigate the same question again in a
subsequent suit even against a different party. This is a desirable solution in that it
prevents re-litigation of a question once decided.
However, when we come back to our legal system, such a result is not clearly authorized
by Art 5, and it is questionable whether the courts will apply this expanded concept of res
judicata.
Finally, before we wind up our discussion, let us consider the effect of res jdicata in suits
where persons have litigated rights claimed in common for themselves and others. On the
basis of Art 5(4) the decision in such case is binding on all persons interested in that
right, who are deemed to claim under the persons who litigated the original suit.
163
This rule would be applicable primarily to the situation where a representative suit has
been filed under Art 38, and all persons who have agreed to be represented are bound by
the judgment. It should also include any litigation where parties are entitled to represent
interested persons other than themselves. In other words, where there is, in fact, a right
,claimed in common, any litigation involving that right is binding on all persons claiming
it.
2Matters Directly and Substantially in Issue
The principle of res judicata is applicable only where the matter directly and substantially
in issue in the subsequent suit was also directly and substantially in issue in the former
suit. However, as we will see, matters which ought to have been raised in the first suit are
deemed to have been raised, and consequently cannot be raised in the subsequent suit.
Apart from this requirement, the question will ordinarily revolve around what issues
actually were raised in the first suit. In order to determine this question, we must ask what
issues were raised by the pleadings, were framed for trial at the first hearing, and were
included in the judgment?
Since, res judicata operates only as to the issues decided in the first suit, it follows that
where a suit is dismissed on a ground not related to the merits of the plaintiff‘s claim, a
subsequent suit on the same claim is not barred by res judicata. Examples of non-merits
determinations that do not prevent a subsequent suit would be a dismissal of the suit for
want of jurisdiction, for default of appearance, for failure to state cause of action, and for
failing to post security for costs when required.
The precise issues in the case will depend on what relief is sought by the plaintiff and
what defences are asserted by the defendant.
Suppose that A sues B to recover Ethiopian $500 in rent due for the year and
obtains judgment for that amount. He does not pray for a declaration that the rent
is so much per meter, even though this is how he computed that Ethiopian $500
was due. Therefore, in a suit for the rent for the following year, B may challenge
164
the rate at which the rent was computed was not directly and substantially in
issue in the former suit.
Sometimes the question of what matters are directly and substantially in issue is tied up
with the question of counterclaim and set-off. The defendant has the option of asserting
, any claim he may have against the plaintiff by way of counter claim or set-off, but is not
required to do so.
Therefore, as we will see, his failure to assert the claim in the suit against him does not
bar a subsequent suit on the claim. But, if he has asserted the facts giving rise to the claim
as a matter of defence, an issue has been created, and the decision on that issue operates
as res judicata.
On the other hand, where the facts giving rise to the defendant‘s claim were not
necessarily involved in the prior suit, the subsequent suit may be maintained.
Finally, it should be noted that the decision on certain kinds of issues might not operate
as res judicata because of the nature of the issue. A good example is an issue as to the
amount due under an obligation to supply maintenance. Since the extent of the obligation
depends on various conditions, which may change, a decision on that question in a suit
for maintenance could not operate as res judicata in subsequent suit, because the
conditions at the time of the subsequent suit may have changed. The same can be said in
custody of the children during divorce. The custody could shift at any time if it is found
to the best interest of the children.
165
5.1.1 Matters Which Has Been Heard and Finally Decided
11.Issues Decided by the Court
A number of issues may have been raised in the case, but not all of them may have been
decided. That is, if an issue has been raised, but has not been decided, that issue is not res
judicata irrespective of the result of the suit.
Where the case has been appealed, the decree of the appellate court must be considered in
order to determine what issues have been decided. The judgment of the appellate court
will operate as res judicata as regards all the findings of the lower court necessary to the
decision of the appellate court even if they are not referred to in the judgment of the
appellate court. In this connection it should be observed that the appellate court may
decide the case on a ground different from the ground on which the lower court decided
Civil Procedure ii
. Other Situations
The next question we have to consider is whether a person should be bound by a
judgment in a prior suit where the party in the subsequent suit was not a party to the
former suit, and is not claiming under a party to that suit.
The question is whether a party who has raised a matter once may re-litigate the same
matter in the subsequent suit involving a different party. Some courts elsewhere have
held that, at least in civil suits, he may not do so. So, where the customer sued the
manufacturer, claiming damages for injuries caused by allegedly defective products, and
in prior suit by him against the retailer, the court found that the product was not the cause
of his injuries; he was not permitted to sue the manufacturer. In other words, a party who
has litigated a question once should not be able to litigate the same question again in a
subsequent suit even against a different party. This is a desirable solution in that it
prevents re-litigation of a question once decided.
However, when we come back to our legal system, such a result is not clearly authorized
by Art 5, and it is questionable whether the courts will apply this expanded concept of res
judicata.
Finally, before we wind up our discussion, let us consider the effect of res jdicata in suits
where persons have litigated rights claimed in common for themselves and others. On the
basis of Art 5(4) the decision in such case is binding on all persons interested in that
right, who are deemed to claim under the persons who litigated the original suit.
163
This rule would be applicable primarily to the situation where a representative suit has
been filed under Art 38, and all persons who have agreed to be represented are bound by
the judgment. It should also include any litigation where parties are entitled to represent
interested persons other than themselves. In other words, where there is, in fact, a right
,claimed in common, any litigation involving that right is binding on all persons claiming
it.
2Matters Directly and Substantially in Issue
The principle of res judicata is applicable only where the matter directly and substantially
in issue in the subsequent suit was also directly and substantially in issue in the former
suit. However, as we will see, matters which ought to have been raised in the first suit are
deemed to have been raised, and consequently cannot be raised in the subsequent suit.
Apart from this requirement, the question will ordinarily revolve around what issues
actually were raised in the first suit. In order to determine this question, we must ask what
issues were raised by the pleadings, were framed for trial at the first hearing, and were
included in the judgment?
Since, res judicata operates only as to the issues decided in the first suit, it follows that
where a suit is dismissed on a ground not related to the merits of the plaintiff‘s claim, a
subsequent suit on the same claim is not barred by res judicata. Examples of non-merits
determinations that do not prevent a subsequent suit would be a dismissal of the suit for
want of jurisdiction, for default of appearance, for failure to state cause of action, and for
failing to post security for costs when required.
The precise issues in the case will depend on what relief is sought by the plaintiff and
what defences are asserted by the defendant.
Suppose that A sues B to recover Ethiopian $500 in rent due for the year and
obtains judgment for that amount. He does not pray for a declaration that the rent
is so much per meter, even though this is how he computed that Ethiopian $500
was due. Therefore, in a suit for the rent for the following year, B may challenge
164
the rate at which the rent was computed was not directly and substantially in
issue in the former suit.
Sometimes the question of what matters are directly and substantially in issue is tied up
with the question of counterclaim and set-off. The defendant has the option of asserting
, any claim he may have against the plaintiff by way of counter claim or set-off, but is not
required to do so.
Therefore, as we will see, his failure to assert the claim in the suit against him does not
bar a subsequent suit on the claim. But, if he has asserted the facts giving rise to the claim
as a matter of defence, an issue has been created, and the decision on that issue operates
as res judicata.
On the other hand, where the facts giving rise to the defendant‘s claim were not
necessarily involved in the prior suit, the subsequent suit may be maintained.
Finally, it should be noted that the decision on certain kinds of issues might not operate
as res judicata because of the nature of the issue. A good example is an issue as to the
amount due under an obligation to supply maintenance. Since the extent of the obligation
depends on various conditions, which may change, a decision on that question in a suit
for maintenance could not operate as res judicata in subsequent suit, because the
conditions at the time of the subsequent suit may have changed. The same can be said in
custody of the children during divorce. The custody could shift at any time if it is found
to the best interest of the children.
165
5.1.1 Matters Which Has Been Heard and Finally Decided
11.Issues Decided by the Court
A number of issues may have been raised in the case, but not all of them may have been
decided. That is, if an issue has been raised, but has not been decided, that issue is not res
judicata irrespective of the result of the suit.
Where the case has been appealed, the decree of the appellate court must be considered in
order to determine what issues have been decided. The judgment of the appellate court
will operate as res judicata as regards all the findings of the lower court necessary to the
decision of the appellate court even if they are not referred to in the judgment of the
appellate court. In this connection it should be observed that the appellate court may
decide the case on a ground different from the ground on which the lower court decided
