Leitch v. Gegra (No. CC 147/07 2007 LNO.4) [2007] SLHC 30 (05 July 2007);


SIERRA LEONE No. CC 147/07      2007      L NO.4




CLAUDIA LEITCH                            - PLAINTIFF


ELIJAH M. I. GEGRA                         - DEFENDANT

RANSFORD JOHNSON                    - For The Plaintiff

AMADU KOROMA                           - For The Defendant


D. B. EDWARDS J . On the 19th of March 2007 the plaintiff in this action applied by Judges summons to be at liberty to sign final judgment in this action against the defendant for the sum of 22,500 Euros interest and costs as claimed in the statement of claim indorsed on writ of summons intituled CC 147/07 L NO 4.

The plaintiff before then had issued a writ of summons intituled CC 147/07 L NO 4 dated 11th February 2007 claiming inter alia the sum of 22,500 Euros interest and costs. An appearance was entered and a defence filed . The plaintiff then on the 4th of January 2007 applied for leave to enter summary judgment through the aforesaid Judges summons pursuant to Order 11 rule 1 of the High Court Rules as amended by Public Notice No 24 of 1964 . The defendant opposed the application on the ground that there was a triable issue. This court heard the application and held that this case raises triable issues . As part of the said ruling this court gave the following directions to wit

" i) that the Plaintiff lead oral examination and produce documents relating to the specific purpose for which the money was had and received for use of the plaintiff

ii) that the defendant lead oral examination and produce documents if any relating to the joint venture or which make the money not specifically to the use of the plaintiff alone. .

iii) That Wednesday the 23rd of May 2007 be the date for such examination and,that the parties on both sides make themselves available in court.

On the 23rd of May 2007 the plaintiff's attorney Mohamed Mustapha testified in this action. He stated that he is the attorney on behalf of Claudia Leitch, the plaintiff and that he knew about the transaction between the plaintiff and the defendant for the defendant to procure land premises for the plaintiff and that an amount of 19,500 Euros in total euros was sent to the defendant through piece meal transfers by Western union . He produced the records of transfers as exhibit A1-10. Under cross examination PW1 stated that all he knew about the plaintiff and defendant is what the plaintiff explained to him. He said the plaintiff told him and that the plaintiff and defendant had agreed to invest in tourism and that in pursuit of this tourism business they needed land .This was the only witness for the plaintiff

One Mr. Sorie Koroma testified on behalf of the defendant . He stated that he was an estate agent and that he met the plaintiff and defendant in the defendant's solicitors office. He stated that while in the Solicitor's office the solicitor told him that the plaintiff and defendant were looking for a land . They told me why they wanted the beach land and it was for tourism. He further stated that he cannot remember that while Claudia the plaintiff and Mr Gegra the defendant were in the solicitors chambers whether they discussed anything about renting premises. Under cross examination the witness stated that by talking to Claudia and Mr Gegra he observed that the plaintiff was a German National and that this was in the presence of Mr Amadu Koroma, the Solicitor

In this case it is clear from the pleadings that the defendant has accepted that indeed monies to the tune of 22, 500 Euros were received for the purpose of securing business premises. The case, however, of the plaintiff is that the defendant having received the money failed to legally procure the said business premises for the plaintiff as instructed. There is evidence that indeed the money was received by the defendant and he went about to procure a land in the names of both the plaintiff and the defendant. The fundamental question before this court is for what purpose was the money sent ?

The defendant seems to be making a heavy meal of the fact that the plaintiff's witness was not present to know the terms of the Agreement, if any, between the plaintiff and defendant regarding the purpose for which the money was sent but he failed woefully to prove the following avernments

a) Paragraph 2 of the defence: That the plaintiff is his business partner who had agreed that they should invest in the business of tourism in Sierra Leone

b) Paragraph 3 of the of the defence: That in pursuance of the said business venture the plaintiff sent certain sums of money to him for the purpose of securing a beach land in the Western Area

c) Paragraph 5 of the defence: That the said sum that the plaintiff sent was not meant to secure business premises as alleged; on the contrary it was meant to promote the business and secure a piece of land which the defendant has done .

These formed the substance of defendant's case. But he was unable to prove them. The defendant made these specific averments as a defence and it was his duty to prove same . Sadly he did not lead evidence on same and consequently could not prove same . On the contrary there could be little doubt that the money was released by the plaintiff for the specific purpose of procuring a business premises . I believe the plaintiff's witness.

That apart the defendant contends that having received the said amount the money was not meant to secure a business premises but rather to secure a beach land in the Western area. The only evidence before this court regarding the securing of the beach land is exhibit B, the conveyance between the plaintiff and defendant. Two observations call for mention with regard to exhibit B . The first is that even if you say that the defendant was right in securing a beach land, exhibit B was not what was intended by the plaintiff as it carried the names of both the plaintiff and defendant when the defendant had failed to establish the joint venture agreement. Procuring business premises for the plaintiff did not mean conveying the so call land in the names of both plaintiff and the defendant as happened and as evinced by Exhibit B. Surely, the defendant having received the money did not procure business for the plaintiff in such circumstances but procured business quite irregularly in the names of plaintiff and defendant.

Secondly even the defendant solicitor in his address urged this court to go according to the pleadings. But in the pleadings of the plaintiff the plaintiff stated that "the defendant has failed to legally procure the said business premises for the plaintiff as instructed and is liable to refund the total sum of 22,500 euros or its equivalent in Leones to the plaintiff being money payable by him to the plaintiff as money had and received to the use of the plaintiff." While the contention of the Defendant is and has always been that the money was received and used to buy the beach land, Exhibit B, and noting further that the plaintiff who bought the land was a German, a non citizen, a fact known to the solicitor who prepared the conveyance, it is irresistible to opine that the defendant has failed to legally procure the said beach land which could be the Business premises . This is so because the plaintiff being a German National, exhibit B thus becomes invalid and it does not pass any title whatsoever to the plaintiff by virtue of the Non citizens Interest in Land Act No 30 of 1966 sections 3-6 thereof. The plaintiff relied on the defendant for him to legally procure business premises and she paid moneys to the defendant for that purpose but the defendant by using the money in the way and manner did not put the money to the plaintiff's use but ut rather to a use not beneficial to the plaintiff .I think that in such situations there is case for saying that the defendant ought to refund the money and the plaintiff should succeed on a claim for money had and received . In the circumstances this court orders as follows :

1. The refund of the sum of 22,500.00 Euros or its equivalent in Leones to the Plaintiff being money had and received by the defendant to the use of the plaintiff.

2.  Interest in the said sum assessed at the rate of 20% per annum from receipt until payment.

3.  The expunging of the Conveyance expressed to be made between ERIC THOMPSON; SALLY THOMPSON AND MRS DEBORAH SALAM (NEE) THOMPSON as vendors and ELIHAH MOHAMED ISSA GEGRA AND MRS CLAUDIA LEITCH as Purchasers the same whereof is registered as No 1590/2005 in volume 592, page 98 of the Books of Conveyances kept in the Administrator General's office the same for purporting to convey land to Claudia

Leitch a German National which was in contravention of the NON CITIZENS INTEREST IN LAND ACT NO30 OF 1966 and impossible in circumstances from the records of conveyances held in the administrator General's office.

4. That the cost of this action be taxed, if not agreed . Hon. Mr. Justice D.B. Edwards J.