The Commercial Case Law Index is a collection of judgments from African countries on topics relating to commercial legal practice. The collection aims to provide a snapshot of commercial legal practice in a country, rather than present solely traditionally "reportable" cases. The index currently covers 400 judgments from Uganda, Tanzania, Nigeria, Ghana and South Africa.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-matter expert postgraduate students from the University of Cape Town.
The applicant sought the intervention of the court over the attachment and proclamation of sale of a house.
The issue was whether the applicant was the bona fide purchaser and if the protection of the court applied to him.
The court expressed that the applicant bought the disputed house which was not free from encumbrances and, worse, while there was an order of the court to the effect that it should not be estranged from the second judgment debtor.
The court held that the applicant did not acquire good title to the disputed house when he purported to buy it from the sixth respondent about 38 months after the order of the court prohibiting that course and hence could not be protected by the court or regarded as a bona fide purchaser.
In the result, the application was dismissed.
This is a second appeal from the Court of
Appeal which dismissed the appellant’s
appeal against the judgment and orders of the
High Court. The background is that the
second respondent obtained a loan from UCB
and they were given a tractor and a trailer
which was attached and the first respondent
sued to recover on the claim that it had been
wrongly attached. The trial court and the court
of appeal dismissed the suit hence this further
appeal on the grounds that the sale and
auction was unlawful, the mode of recovering
the property and the holding that the plaintiff
wasn’t a bonafide purchaser for value.
In this case the plaintiff claimed for special and general damages against the defendant for fraud and conversion of the plaintiff’s petroleum products. The case deals with fraud, where the party that benefited was not a bona fide purchaser of the products in this case. The court considered whether the defendant had good title for the products sold to him by the third party. Whether the defendant had a claim against the third party and whether there were remedies available to the parties.
In dealing with the first issue the court considered whether the defendant had acquired a better title than the mysterious seller had because the mysterious seller did not have any title to the good. The court applied the general rule in the latin maxim nemo dat quod non habet which was reflected in section 22 (1) of the Sale of Goods Act. The court found that the mysterious seller had no title to pass to the defendant and thus the defendant never acquired good title to the property. Therefore, the defendant was liable to make good any loss suffered by the plaintiff as a result of the conversion of the plaintiff’s goods.
In considering the second issue, the court found that the defendant had proved the transaction it had made with the third party and was therefore indemnified against the third party.
In considering the remedies available to the parties, the court held that general damages are compensatory to fulfil the principle of restitution in integrum which aims at restoring the plaintiff as nearly as possible to the position he or she would have been had the injury not occurred.
Therefore, the court upheld the plaintiff’s claim with costs.
The court also held that for the indemnity suit against the third party, the third party was to settle all liabilities ordered against the defendant less the amount against the defendant.