H. N. O. Abbey & Anor V S. K. Ollenu (1954)

LawGlobal Hub Lead Judgment Report – West Africa Court of Appeal

Fraud—Acquiescence amounting to fraud. Estoppel—Purchaser not a party in later litigation—Owner standing by.

Facts

One I.F. sold and conveyed land to the respondent, who later built on the land in ignorance of the fact that after his purchase, and before he built, the appellants sued his vendor I.F. and obtained a declaration of title in their favour.

After the building was completed the appellants as plaintiffs sued the respondent in the Native Court and obtained judgment for recovery of possession and mesne profits; this was set aside on appeal by the Land Court; and the appellants appealed to the Court of Appeal.

For them it was argued that the respondent knew of the defect in his title but built nevertheless, and that he was bound by the declaratory judgment; for him that they knowingly stood by whilst he built in ignorance of it.

Held

(1) The respondent was not estopped as being privy in estate by a judgment in an action against his vendor commenced after the purchase;

(2) The Land Court Judge was right in holding that all those elements existed in the present case which amounted to fraudulent acquiescence in the plaintiffs.

Cases cited:—

(1) Mercantile Investment and General Trust Co. v. River Plate Trust, Loan, and Agency Co., 1894, 1 Ch. D. 578.

(2) Willmott v. Barber, 15 Ch. D., at p. 105 (where the elements mentioned in Held (2) are set out; they are quoted in the judgment infra).