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Segopolo and Another v Morteo Condotte (Pty) Ltd. (Civil Appeal No. 8 of 1995) [1996] BWCA 21; [1996] B.L.R. 85 (CA) (2 February 1996)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Civil Appeal No. 8/95 High Court Civil Case No. 1466/92
In the matter of:
Appellant
SEGOPOLO AND MOGOBE
Respondent
and
J.V. MORTEO CONDOTTE (PROPRIETARY) LIMITED
C. Ziman for the Appellant V. Vergeer for the Respondent

JUDGMENT
Delivered on 2nd February, 1996
CORAH: W.H.R. SCHREINER J.A. T.A. AGUDA J.A. P.H. TEBBUTT J.A.
SCHREINER J.A.,
This appeal involves the sum of P4524.04. It arises from a High Court action the subject matter of which was the recovery of an admitted over-payment of that amount by the Respondent to the Appellant and the refusal by the latter to repay it on the ground that the condictio indebiti did not lie against the firm. It is alleged that the Appellant received the money in its capacity as attorney for its client Lamex International (Proprietary) Limited ("Lamex") and paid it into the account of Alpha Civils (Proprietary) Limited ("Alpha Civils") which, had a claim against the Respondent for an amount of P54,518.65 arising out of a sub-contract relating to certain road works at Gaborone.

The Appellant contends that, in the circumstances, it was not the
"recipiens" of the over-payment because it received the money in
its capacity as agent and, because of the appropriation of the
amount to the Alpha Civils account, it was not enriched. In view
of the amount involved it might be thought that the matter could
have been settled without resort to litigation in the High Court
and an appeal to the Court of Appeal. Once the amount of the
over-payment had been ascertained on admitted it should not have
been beyond the ingenuity of the Appellant to determine with
Lamex and Alpha Civils which of them had received the benefit of
it and was responsible in equity for paying the amount to the
Respondent. Instead of this the Respondent was forced into the
position of launching a High Court action. It chose the
Appellant as the party responsible because the latter had
actually received the money for distinction. This is
regrettable.
The following extracts from the Respondents Particulars of
Claim set out at the factual position and were admitted as
correct by the Appellant:-
"3. 3.1 During December 1991 and under CC 1705/91 Lamex International instituted action against the Plaintiff [the present Respondent] claiming payment of the Pula equivalent of the sum of R58 ,559.89, interest and costs. The Defendant [the present Appellant] was the attorney of record.
3.2    
Judgment by default was granted against the Plaintiff on the 14th January, 1992 and a writ of execution issued on the same day.
3.3    
The writ of execution was served on the Plaintiff on the 15th

3
January 1992 and on the same day an attachment made upon the Plaintiff's immovable property. A copy of the notice of attachment is annexed hereto marked "A".
3.4 Pursuant to the attachment, the Plaintiff paid to the Defendant a sum of P52,459.00 intended to cover the following amounts:-
 (a)    
Judgment debt    45 240,40
 (b)     Interest at the rate of 18.5%    642,01 calculated up to 15/1/92
 (c)     Attorneys collection commission  4524.04
 (d)     Legal Costs      350.00
 (e)     Deputy Sheriff's costs   200.00
 (f)     Deputy Sheriff's commission at
3.25%    1502.55
4.1      The payment of P4, 524 was made in the
bona fide and reasonable belief that the
Defendant was entitled to collection
commission.
4.2      The said amount was not owing to the
Defendant."
The last allegation in paragraph 4 was that "the Defendant
nevertheless appropriated the monies". This the Appellant
denied. It is said by the Appellant in this regard:-
"2) Ad para 4.3. Defendant denies appropriating the said funds and avers that the funds were transferred to and in favour of another of Defendant's clients one Alpha Civils (Pty) Ltd in partial set-off of an acknowledged debt owed by Plaintiff to the said Alpha Civils (Pty) Ltd. This fact was notified to the Plaintiff."
In the circumstances the Appellant denied liability to pay the amount to the Respondent. There was no replication.
The evidence given on behalf of the Respondent was hardly satisfactory and largely hearsay. The witness also had a
language problem and the appeal has to be decided mainly on the

4 pleadings and, in particular, the admissions by the Appellant of the contents of most of the Particulars of Claim.

The Appellant relies upon the persuasive authority of Phillips v. Hughes; Hughes v. Maphumalo 1979 (1) SA 225 (N) as establishing that it is not necessarily the person who is actually paid by the claimant who is liable to repay money which is over-paid. It is someone called the "recipiens" who may not be the immediate recipient. I am dealing with the case of money only. He may be purely a conduit who is given cash or other money for transmission to another and who has nothing to do with it apart from the duty of delivering it physically to the person to whom it was intended to be paid e.g. the Deputy Sheriff in the present case or the Post Office. Other kinds of agent might well be in a similar position. But where the duty of the intermediary is something more than the transmitter of the over-payment and he has some interest in the money itself either because it is wholly or partly due beneficially due to him or because he is obliged to take certain action in respect of it he is the recipiens. What he does with the money thereafter would be irrelevant to the question of whether or not he is the recipiens and so liable to return any over-payment to the claimant. I think that the cases where a person who actually received possession of money from the payer can successfully plead that he is not the recipiens must fall within a narrow complex.
In the present case the over-payment resulted from an incorrect account being provided by the Deputy Sheriff and rendered to the Respondent who was not versed in the ways of attorneys and the complication of post-litigation procedures.

5 It was reasonable for it to pay. To an attorney it should have been obvious that the item entitled "Attorneys Collection Commission" would have to be challenged, but a construction company would not have any idea as to whether it was due or not.
The fact that the Appellant unilaterally and without apparent authority from Lamex credited the account of Alpha Civils should not be allowed to defeat the claim of the Respondent for repayment of the alleged commission. The form of the account is such that in my view the Appellant was obliged to distribute it to the persons ultimately entitled. The Deputy Sheriff's costs and commission would have had to be paid to the Deputy Sheriff. The "legal costs" could be retained by the Appellant and, if it had been due, the attorney's commission would similarly have been retained by the Appellant. The balance would have been payable to Lamex. It follows that the recipiens of the whole amount shown on the Deputy Sheriff's account was the Appellant because he was obliged to receive it and allocate it in appropriate amount to those, including himself, who were each entitled to a proportion of it. I am therefore of the view that the first point taken on appeal by the Appellant fails.
A defence that the recipiens was not enriched by the overpayment may in certain circumstances be successfully raised (African Diamond Exporters Ltd v. Barclays Bank Ltd 1978 (3) SA 699 (A) at 709) . If the defendant is shown to be the recipiens of a sum of money including an over-payment and it is irrelevant as a matter of law what he does with the money (See Phillips v. Hughes (supra) at 231 B to C) it would seem to follow that the recipiens must be regarded as having been enriched.

6
Be that as it may, it is clear from the African Diamond Exporters case (supra) that enrichment is not always a sine qua non to recovery under a condictio indebiti.
In the present case the Respondent acted upon an account presented by the Deputy Sheriff. It does not appear from the papers whether the account was drawn up by the Deputy Sheriff or the Appellant's attorneys. I do not think that it matters because the Deputy Sheriff, in carrying out his statutory duty, was acting on the instructions of the Appellant and the latter must be held responsible for the account which was presented for payment to the Respondent. But for this account the over-payment would never have occurred. I do not think that the Respondent was negligent when it paid an amount demanded by the Deputy Sheriff who, after all, was part of the machinery established by the State for the enforcement of judgments. Thus, though I cannot say that the item of "Attorney's collection commission" was inserted by someone fraudulently and with the intention of extracting from the Respondent more than was in fact due, it does seem to me that the over-payment was caused by the misrepresentation contained in the account that an "Attorneys collection commission" was due.
The amount which was overpaid was intended for the pocket of the Appellant. It would have stayed up there had the Appellant, for reasons best known to itself, not decided to credit it to the account of Alpha Civils. It seems therefore that the Appellant must be deemed to have been enriched and that, if this is not so, this is a case where it was not necessary to prove enrichment.

I would therefore dismiss the appeal with costs
Delivered in open court at Lobatse on 2nd February, 1996
W.H.R. SCHREINER [JUDGE OF APPEAL]
I agree and it is so ordered.
T.A. AGUDA JUDGE OF APPEAL]

I agree;
P.H. TEBBUTT [JUDGE OF APPEAL]

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