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November 4, 1939
WEST AFRICAN COURT OF APPEAL
CORAM
The following judgments were delivered :BROOKE AND CAREY, JJ.
The claim in this suit was for £101 13s. " being loss sustained as purchase money and other expenses in connection with the purchase by the plaintiff of a house and landed property of one Oseni which property was attached and sold by the defendants, which sale was set aside by the High Court the attachment being declared no valid attachment ".
The actual cause of action on which this claim proceeded did not appear either in the writ or the Statement of Claim: in his opening in the Court below the learned Counsel for the respondent referred to the fact that there was no valid attachment and went, on to say" G. B. Ollivant was a wrongdoer: and so should not be allowed to keep the proceeds ".
A previous judgment in case No. I /68/38 was put in as showing that the attachment was invalid: the learned trial Judge in that case had not before him the amendment (in Rules of Court No. 2 of 19;)6) to Rule 10 of Order XL V of Schedule II of the Rules. The appellants were not parties in that case.
Egbeyemi v. Ollivant 0- CO., Ltd.
The defendants submitted there was no case to answer, as fraud had not been proved and the principle of caveat emptor applied.
The learned trial Judge found that the sale and purchase and the setting aside of the sale owing to the attachment being invalid were proved and then went on to say that the onus passed to tp,e defendants to prove that their attachment was a valid one and that they had failed to do so ; judgment was given for the plaintiff and was based on the defendants' failure to prove the validity of the attachment.
The following grounds of appeal were argued at length :-
1. That the learned Judge was wrong in finding that it was not proved in Suit 1/68/38 that the attachment preceded the sale and conveyance to Salako, it having been then admitted by the Respondent that it did.
2. That the learned Judge was wrong in holding that Appellants had no right, title or interest in the property and that Oseni had sold his right, title and interest in the property sometime before the attachment.
3. That the learned Judge was wrong in holding that the Respondent had made out a prima facie case on the strength of the judgment of Mr. Justice Graham Paul in Suit 1/68/38.
4. That the learned Judge was wrong in law in holding t4at the onus rested on the Appellants to prove that the attachment had been effected in accordance with the requirements of the law, there being
AI Generated Summary
In Egbeyemi v. G. B. Ollivant & Co., Ltd., Egbeyemi sought to recover £101 13s and expenses paid for a house and land of Oseni sold in execution by G. B. Ollivant. He relied on a prior High Court ruling in Suit 1/68/38 that the attachment was invalid, arguing in negligence, mutual mistake, and deceit that the judgment creditor should refund the proceeds. The trial judge accepted that the burden lay with the defendants and entered judgment for Egbeyemi. On appeal, Brooke and Carey JJ held that the writ disclosed no cause of action in contract or tort, there was no covenant for title and no fraud or misrepresentation, and caveat emptor controlled judicial sales. Butler‑Lloyd, Acting C.J., separately concurred, cautioning against effectively making judgment creditors guarantors of title. The appeal was allowed, the lower court’s judgment and costs were set aside, and judgment entered for the defendants with costs below and on appeal.