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 court was called upon to determine who was entitled to ownership and possession of property in dispute between two purchasers. One purchaser claimed the property because they executed a writ of fieri facias (writ of fifa) attaching the property to recover a debt but this was not executed. A writ of fifa is a document issued by the court for the purpose of enforcing a judgment debt by permitting a judgment debtor to have a legal right to seize the losing party’s property to recover the amount due to them
Sometime later another party attended an auction, another purchaser purchased the same piece of property.
The court held that the sale at the auction was illegal because of the principle of nemo dat which provides that the first person to get title is entitled to that property notwithstanding any subsequent sale. Therefore even though the writ of fifa has expired, the party who got judgment get title to the property as judgment debtor.
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.