(West Africa) Care must be taken in respect of the notion that merely standing by and waiting to see the outcome of a case in which the non-party has an interest, without more, involves an abuse of process. The parties now disputed title to land, but it was complained that the title had been determined in previous proceedings, but the plaintiff had stood by without asserting his own claim. The principles derived from the Wytcherley case are not restricted to probate proceeings. Lord Denning said: ‘English law recognizes that the conduct of a person may be such that he is estopped from litigating the issue all over again. This conduct sometimes consists of active participation in the previous proceedings, as, for instance, when a tenant is sued for trespassing on his neighbour’s land and he defends it on the strength of the landlord’s title and does so by the direction and authority of the landlord. If the tenant loses the action, the landlord would not be allowed to litigate the title all over again by bringing an action in his own name. On other occasions the conduct consists of taking an actual benefit from the judgment in the previous proceedings, such as happened in In re Lart, Wilkinson v. Blades [[1896] 2 Ch 788]. Those instances do not however cover this case, which is not one of active participation in the previous proceedings or actual benefit from them, but of standing by and watching them form out most giving evidence in support of one side or the other. In order to determine this question the West African Court of Appeal quoted from a principle. . . ‘ in Wytcherley.
He continued ‘Mr. Phineas Quass argued before their Lordships that the principle stated by Lord Penzance was confined to wills and representative actions and has never been extended further. . .
[The principle] may have been found appropriate in England only in special conditions. But there is no reason why in West Africa it should not be applied to conditions which are found appropriate for it there, but which have no parallel in England. It seems to be the recognized thing in this part of West Africa for all persons with the same interest in a land dispute to range themselves on one side or the other. Sometimes they apply to be joined as parties. On other occasions they regard the named party as their champion and support him by giving evidence. If he wins, they reap the fruits of victory. If he fails, they fall with him and must take the consequences. It is now 25 years ago that the Chief Justice drew attention to this way of looking at litigation: see Yode Kwao v. Kwasi Coker [(1931) 1 WACA 162, 167], Appoh Ababio v. Doku Kanga [(1932) 1 WACA 253]. It has led the Court of Appeal in West Africa to look for a principle to meet the situation and they have found it in the principle stated by Lord Penzance: see Akwei v. Cofie [(1952) 14 WACA 143].
Judges:
Lord Denning
Citations:
[1958] AC 95
Jurisdiction:
Commonwealth
Citing:
Applied – Wytcherley v Andrews 1871
Lord Penzance said: ‘There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held, . .
Cited by:
Approved – House of Spring Gardens v Waite CA 1991
The principle of abuse of process is capable of applying where the relevant earlier proceedings have taken place before a foreign court (Ireland). In this case the defendants argued that the judgment obtained in Ireland had been obtained . .
Cited – Wiltshire v Powell and others CA 7-May-2004
The claimant sought a declaration as to the ownership of an aircraft. Saying he had bought it in good faith from E H and S, who in turn similarly claimed to have bought it from Ebbs. The defendant had obtained a judgment that he was owner as against . .
Cited – The Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 13 May 2022; Ref: scu.198734