Leitch v. Gegra (No. CC 147/07 2007 LNO.4)  SLHC 26 (16 May 2007);
SIERRA LEONE No. CC 147/07 2007 LNO.4
IN THE HIGH COURT OF SIERRA LEONE
CLAUDIA LEITCH- PLAINTIFF
AND ELIJAH M. J GEGRA DEFENDANT
RANSFORD JOHNSON - For The Plaintiff
AMADU KOROMA - For The Defendant
RULING DELIVERED THIS 16TH DAY OF MAY 2007.
D. B. EDWARDS J .This is an application by judges summons dated 4th January 2007 for the plaintiff to be at liberty to sign final judgment in this action against the defendant/ respondent 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 applicant 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 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 application was supported by the Affidavit of DANIEL MOHAMED DEEN MUSTAPHA sworn to on the 19™ day of MARCH 2007 together with the several exhibits referred thereto to wit exhibits DD1 -DD12.
The defendants opposed the application on the grounds that the defence raised triable.
The defendant however failed to file an affidavit in opposition. I have perused all document s in this matter including the defendant's defence. It is the view of this court there is no documentary evidence before this court as to the actual transaction that took place between the plaintiff and the defendant . What however is certain is that the defendant admitted receiving the this money .
In BULLEN & LEAKE AND JACOBS PRECEDENTS ON PLEADINGS 13™ EDITION IN SECTION 71 AT PAGE 1313 it is stated
"The defence in an action for money had and received should deny the receipt of money, or the existence of those facts which are alleged to make such a receipt by the defendant a receipt to the use of the plaintiff"
In this matter what however is uncertain is the fact that the plaintiff states that the purpose of the money was to procure business premises for the plaintiff. Thus according to the plaintiff the money was received by the defendant to the use of the plaintiff in securing business premises .This however is denied by the defendant who in his defence states that the money was remitted to him for the purpose of securing a beach land in the Western Area which the defendant had done in BUREH TOWN insisting that there is a conveyance to that effect in the name of both parties . In paragraph 5 of the defence he categorically denies that the money was not meant to secure business premises as alleged
The defendant has also pointed out that the plaintiff was not in position to know the Niti gritties of the transaction.
While the defendant has admitted to the receipt of monies It would appear to me that he has pleaded those fact which are alleged to make such a receipt by the defendant not a receipt to the use of the plaintiff as gleaned from his defence . The defendant in essence is saying he received money for a joint venture which is still in the process while the plaintiff is saying the money was received for a specific purpose with respect of her which has not materialized hence the action for return of her money .
While I hold that a property in the joint names of persons is not evidence of a joint venture agreement as to the use of money received. I should hold that this case raises triable issues and is not within order 11 rule 1 as amended by Public Notice 24 of 1964 and I hereby order as follows
1. Liberty to sign final judgment in this action against the defendant/ respondent 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 is refused .
2. This court gives the following directions
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 defendant 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.
iv) No order as to cost.
lion. Mr, Justice D.B. Edwards J.