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Rights of purchaser of land sold under writ of fi-fa as against execution creditors when sale set aside as invalid-Principle of caveat emptor-Potior est conditio possidentis.

The Appellants, in endeavouring to reap the fruits of their judgment against one Oseni. attached and sold certain property. This property was bought by the Respondent. The sale was afterwards set aside by the High Court. The Respondent then sued the Appellants to recover £101 13s ..• being loss sustained as purchase" money and other expenses" in connection with the purchase of the property. The trial Judge held that the onus was on the defendants to prove the validity of the attachment and gave judgment for the plaintiff on the ground that they had failed to do so.

Held: (Reversing the decision of the trial Judge) That the principle of caveat emptor applied and that the writ and Statement of Claim disclosed no cause of action. There was no covenant for title; nor was there fraud or misrepresentation. Appeal allowed and judgment entered for defendants.

Sabitiyu AjiKe versus Tamakloo and Adamu Tairu (12 N.L.R.62) distinguished Cases cited :-

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 a legal presumption in favour of the regularity of judicial process.

5. That the learned Judge was wrong in not finding that the onus rested on the Respondent to prove that the attachment was invalid apart from the judgment in Suit 1/68/38 and that the Respondent had failed to do so.

6. That the learned Judge erred in law in finding that, in the absence of convenant for title and of fraud on the part of the Appellants, the Respondent is entitled to repayment of the purchase price and damages.

7. That generally the judgment is erroneous in law and against the weight of evidence.

The argument of Counsel for the Respondent, as we understood it, at first seemed to suggest that he relied for his cause of action on tort arising from negligence and that there was an' absolute liability to refund the loss sustained by his client. }Ie tllen shifted his ground to an argument based on mutual mistake of fact material to the contract and sought to bring his case within the decision in Sabutiyu Ajike v. Tamakloo and Adamu Na Mallam T,iru 12 N.L.R. 62 and to distinguish the case Owo v. Kasumu on the ground tha.t there was no express warning to intending purchaser to investigate the title, that it was not shown in that case that there was no title or interest and that there was no suggestion of the attachment being invalid.

Finally he reverted to the contention that the claim was framed in tort and that an action of deceit lay apparently on the ground that there had been a failure to disclose defects in the title.

We are of opinion that the writ and Statement of Claim disclosed no cause of action and that the submission that there was no case to answer was correct. We are further satisfied that the argument. before this Court has failed to establish on the facts of the case any cause of action arising either in contract or tort. There was no covenant for title and the facts referred to by Counsel do not in any way constitute fraud or misrepresentation.

The fact that the attachment was held in another case before the High Court to have been invalid, which was not conclusively proved herein, is immaterial. The principle of caveat emptor applies and the money had actually reached the hands of the judgment ,creditor.

The facts are distinguished from those in Sabitiyu Ajike v. Tamakloo and Adamu Na Mallam Tairu 12 N.L.R. 62 where there was a mutual mistake of fact material to the contract and it was held void, and the words of Lord Chief Baron Richards in Clare v. Lamb 1875 L.R. 10 C.P. 54 referred to in that case may be quoted here ;-

" There the vendor was seeking to enforce performance of the contract by compelling the purchaser to pay for a thing he had not got. Here the plaintiff is calling upon the vendors to refund money which they honestly believed themselves to be entitled to when they received it. Potior est conditio possidentis ".

I have had an opportunity of reading the judgment which has just been delivered with which I fully concur.

In my opinion the writ disclosed no cause of action. I t alleged no contract between the parties, still less the breach of any such contract, and it alleged no fraud on the part of defendants. The statement of claim was no more explicit. In fact right up to the conclusion of his argument respondent's Counsel was quite unable to make up his mind whether the action was in contract or in tort.

While sympathising with the respondent who has lost his money and got nothing for it I think it cannot be too often pointed out that a purchaser of real property, without a covenant for title, has, in the absence of fraud, no remedy once he has paid the money over. It is otherwise if he has not actually parted with the money (Ajike v. Tamakloo 12 N.L.R. p.62). It is up to a purchaser whether by private treaty or at auction to satisfy himself as to the .. right, title and interest" he is buying, and if he buys without doing so he cannot complain if he is ousted by a third party proving a better title. This is the doctrine of Caveat Emptor which was applied in Owo v. Kasumu 11 N.L.R. p.116 and in my opinion it is equally applicable to the present case.

If this judgment were allowed to stand it would in effect make every judgment creditor a guarantor of the judgment debtor's title to any property sold in execution, a position the absurdity of which needs no demonstration.

The order for costs in the Court below is also set aside and Defendants-Appellants are awarded costs assessed at 25 guineas in the Court below and at 45 guineas in this Court.