KOMALA DECCOF & CO S.A. AND OTHERS v. PERUSAHAAN PERTAMBANGAN MINYAK DAN GAS BUMI NEGARA (PERTAMINA)

IN THE COURT OF APPEAL

1986, No. 167
(Civil)

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RULING

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Cons, V.-P.:

1. Objection was taken yesterday afternoon to the argument by Mr. Clarke, who appears for the Appellant, of questions of estoppel which are mentioned in paragraphs 10 and 11 of his skeleton argument. They relate to cause of action estoppel, issue estoppel and the wider principle of Henderson v. Henderson¹.

2. The self-same questions have already been decided by, another division of this Court, albeit in another action, but in an action between the self-same parties to the present action and with regard to the self-same circumstances.

3. We do not argue with the comments in Spencer Bower to which Mr. Clarke has drawn our attention in support of his contention that nevertheless he is still entitled to re-open these questions. But we do not see this as a question of estoppel. We see this as a question of precedent, and we are not disposed to hear argument in contradiction of decisions of another division of this Court unless we are persuaded first that those decisions are within the category of obiter dicta.

4. We are not persuaded in the present circumstances that that is the position. It is true that the other division could have come to the same overall conclusion without expressing an opinion upon the three points in question. But that is not what happened. The points were raised in the papers before the Court. There was full argument upon them. The Court did come to conclusions. It would be highly embarrassing and, in our view, would set an unsatisfactory precedent were we now to come to different conclusions.

5. We accept that the Defendants were not able in that other action to take the matter any further, but they would not necessarily be barred in the present action. We understand that the points were expressly reserved in the court below. We are content that they be taken as being reserved before us, but we are not prepared to hear any argument ourselves. And so the objection is upheld.