WILKINSON v. EDUSEI

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. This is an appeal from a judgment of Jiagge J. delivered on the 23rd March, 1962, in favour of the plaintiff, respondent in this court for £G3,380 claimed by him as "damages for failure of consideration and for damages for breach of covenant for quiet enjoyment." The alleged failure of consideration and the alleged breaches complained of are in respect of covenants contained in an indenture of assignment dated the 23rd March, 1961, by which the defendant, the appellant herein, assigned to the respondent for a consideration of £G3,000 his interest in a piece of land which he held under and by virtue of an indenture of lease dated the 10th January, 1947, registered as No. 33/1947 in the Lands Registry. The appellant denied liability. The main issues joined for trial were (a) whether or not consideration for the assignment had failed; and (b) whether the appellant had committed a breach of his covenant.

Obviously the onus of proving each of the issues joined is upon the respondent; if the evidence on the whole leaves the matter in doubt this action must fail: see Stoney v. Eastbourne,1 and see also George on the Sale of Land at p. 488 under the heading "Onus of Proof."

[p.395]

The evidence tendered by the respondent may be summarised as follows: An offer to assign the lease was made to the respondent by the appellant through one Mr. Brown; while he was considering the offer, the appellant sent the said Mr. Brown to him to say that he would like an early decision on the matter as the Salvation Army was interested; in view of that information, he paid the amount, £G3,000, to the appellant even before his solicitors had concluded their investigations into the appellant's title. The appellant's solicitor made available to the respondent's solicitors all the relevant title deeds and documents including judgments relating to the land, and after they had satisfied themselves, his said solicitors prepared the deed of assignment and the appellant duly executed it. Thereupon the appellant placed the respondent in possession of the land; the land was vacant when he was so placed in possession thereof. While the respondent was in possession, a certain man trespassed upon the land and commenced to build on a portion of it; this happened about three weeks after he had gone into possession. The respondent then called upon the appellant to take steps to eject the trespasser. At first the app