19810822 TZHC Mwanza

;7· ii-~~t1,:~;1' ··,_;_:"1 41: .f ' J IN THE HIGH CUUPT OF Th.i3ZAIUA AT MUANZA ., . JACOE 3UTONDO .· .. . . 00(')0()000000,0Q0000000000000 .. PLAINTIFF v e r s u s KlTUO CHA ELIHU YA Wi\'I'U Hi.ZIMA ·DEFENDANT (USEJ{EHALA 1'/1, UASHI -. MA.GU · .J U D ·,GEM. E N,- T , . ,. MFALILA, J~, - :T.he'! plai·ntiff JACJ)i3..- l~J'JJ)NDO sued thr~ def encl_ •nts cLYiming:i khe' sum of shsi';'2J•, 454/- being the bu lance 0£ thE~ •price of timber s.upp1ir.:d by him to· the Th-::: def\::c1idahtrs denied the.· cl17.im sc1ying that they • hact· no dcnling's with· th•~ plaintiff,· thn.t the only person they had dealings with was one Alphoncu Gilyn from whom :~ "they b'rought -nl:r th.:#:i'.r ·supply of: timber and that they ~aid for· ali' t1-i~ · tfmber ::s-upplied to thein by this Gil ya·,·· in fuct they i-6.'i~l :1thc~y mti"cJie•·;,arr overpaymfmt o-f. shs. · 44'6/,.. which t_h~y were CC)Uri ter;.:t:laiming"' r; :i ; ,.;, . + 'J··· -~rl the light o~ these p1eadings, the fullowing issues were drmrn up 'i3.t the<~be•ginning; :tof the trial • . ,• . ' . ·t't ''. ,· ' .. ,;,."' ··.,(l') ·\·,Jith whom did the defendants con.tr-').c\ fpr the ._:,_::.~-·< \.):'!' s\.1.iJIHY .. of timber? , •!' Y .r _. .. rr ,.J • • · · ( 2) :lJtis· thi's timber; ·supplied; if so, how much .,•; 2.r½a·f6:t'how much1· ~i {3J"""How' 1mu~h of''this ptlrc:hase price did or : hu'Vl--· thl.? ..ld~fend<1ntii paid?.• ·.. ,J ;; . .. . . l4) Is ih(r~ianj,out~landirig amount or 0 i";'i:i'erpaymeilit? : ·:: :J ·r. n .'.· r_•,~ . (§)-·To Wh<7t,t reliF~fs ~fe . the p~3rt±~s entitleq? , . Th 12 plc.::i.. ntif-f· was-· his bhl~r wi 1;:pe-ss. He sc1id in hi~ : n· J,'e'iirid,:ince thi':rt he::is .a timber rne.z-ihari-1:: and that. oh 7/9/80 the , ·.1· ,,:,,;,d defen<lnnts c1j:ipro.bched.- him ahd pslc2d to buy t,imb,et'1 f.totn him. ·-1 'A£t&.. •rctg±-G,Ldn:g,·orr, Hie price-• he. SrUpD1iGtJ. them ;w'.i;fh 424 pieces . ·\ ,·:: ' '''.. 'b:f> ti:rhbdr •t4:Jf~rlJl.i.'ng l.5!31..; 60, runntng '.metr~s., -•- ~lJese were 1 ..·• :. of., ·:i/-ciri.bus 'siws, imd:' ·the·iri prices d),Jfer2<i- but th~ total :: c1amG': to shs •. 23:854/;;.;~ The defendant$ W,~r-2 no't able to pay tl'li'm· 16n th,.: spotr,r they asked hi.m• to accompany them to MAGU · where they· wbuldnnake, the.. ,p.ayment. This h,:! did and they ard..-vJd ;J.t MAGU on 9/9/80. On arrival t'lt Magu, the ctef(md:rnts s'till: could not pay him, th,::y kept on putting him off on ,one pretext and another until i1 week, e,lapsed. \ • 0 ./2 I f ,I -2- He <J:,Vc! Ui:, c:1nd returned home to wai 1:a But when a month elaps2( w:i. thou,t any r.esul ts, he went. b0.ck to I1,1gu ond ask-Jd th , cL~fcn.cl.2nts to acknowledg,./, th,., s:::i.le and outst-n.dL1g amount in· writingo This ,.,.;os done ,rnd the docum2n.t ~.?.~hibit Pel~.:~•nis ·execub,d nn1 sign~ct for and on behalf af the defcnd~nts by th~ th □ irman. The docu.m ;;,t is dated 15/10/800 Aft8r this, the pl3intiff □ ske6 the defend~rits to gtvc him money for his fc"•r::. b~ck homeo They howevr;:r m:jde pt:1rt payment ofshso 400/-, and promisert t~at they would pay the holQncu nfter they had sold the desks they ware making, and th2t when this W,3S ready they would send for hima The plc'lintiff went back home and renv:,in-,!d there for the whoL:. mo:1th without hr~aring a word from the defendants• He decided to follow them. On arrival, he found that th.::~y h-x1 sold all the desks, but still told him that the,y had no money to pay him. At this s·tng~ the . defendDnts nl.so ch2nged their ·stand· and. told the plaintiff th2t th~y did not recognise him, that they only r-:.::co9nis,:'d ohe Alnhonce Gilya who sold thern timber -:md t,:.:i \•!horn they paid all that wns du Go ·With this urn:.xp,t·~tcd turn of events, the plaintiff deeided to se,-,k r(::dr:"ss thr6ugh the courts and filed_ '.this suft. On the:ir side the defendants' c:ase was told .:by their .accountc:;:~t N<ICHOLAS PETRO {D.,WoI). I rrtu!;t say the evidcmc,3 · of this :wi;tFJ.QSS wb.'s as unimpressi VC:. as it was unreliahle. AccorJj_,19-1:o thi'S witness·, Alph~nee Gilyn approached ;t~lieir Society on 9/10/80, in his cap~tity as thei~ ag~rit arid inforrt1c,d them th2t he had timber ready -for sale. Afte.r settL~.q th;:.:, Drice~:, they le'ft together in ci· hir~p ,l.or.t'y to qo 2:1dJ CP112ct th," timher :ffom Gil ya' s premises a~ Gei ta. They o.:cri v-2d r2t Gei ta on 10/10/80 and loaded the timber on the Su!i,•¢ d:ihy and lbft for th:i j ourn8y bnck to Magu wher(;! th,:y arrived on 11/10/80. Th,:y th•.:r1 paid Gilya, shso 6,000/= wh!ch he had asked as advanc8 payment to enable h;m pay hi4 workers. ·On 15/10/80 th~y paid Giiy~ anothlrr shso 12,000/~, y~~ again on 18/11/80 they paid him a furth,,,r sum of shs., 5,000/-, and lastly on 2/12/80 they c,c1irl him shso ,100/ ... ., After making 'this last payment to Gilya th,::! plaintiff approc'll::hc,d th,::m bnd defuatided paym,~r-1t. They had to tell him that .,., ·.' did. not know him they uncl that they :only knew Gilyn to whom they had mo.de 1111 th~ payment~ and that they hc'ld. in~ □c~ o~erpaid Gilya shs.446/- which sum they were counterclaiming. ;• t. :. f ·. ' ' Ir~ a wu.y th::, defendants' case was. supported by Gilya·, . he snid in his evident;~ that he is a. timber' merchant and that he · and the< 1 )1aintiff \-rorked· tog~~ttwr:~ _ ·. ;[n September, ·-:19QO, they hud tog?ther 1c~~~hct~tj ~nou1h t;rnJ)cr:j~r markGti.2.g • . He therefore weri:t ,qhcl it),:f;°orm,~d ,the :defendants in his c::,:;iactty 3.S th,';ir agent:'aBb.i:ifthc/timbero The -dc~f•2~dz1:,ts 2qrcl.::;c1 to Jjuy the~ •,tim})er. and travelled to Gei ta ito. to ·collc°-ct After' t~king the"'tfmlxir 9 th.: defendunts ~aid him shso 6,000/- which was· an outstanding dc::bt to him, thu plairitiff had therefore no shnre in ito In Octbb-::T thcc defend·a·nts· collected th,c seco·!'"ld lot of timher f6r which thiy did ~btipay on· the spdt; but after one month, they paid him shso 12,000/-o He ~xplained thut the defe,~,d0nts made th,~ payment to him b<',cause it was he w'ho hc1~1 si.g::i:~d the contract. -3- Out ,:;,f thi:S. sum shs. 6,000/- belongerl. t() the plc1intiff anrl h.: USc:d it to pay the plaintiff Is workers )On hi'S dir~cti0nso ,He dirl likewise to his money. Agairi later th~ •lehmd-,nts paid him shs. 5, 000/-, he u:scd thP. whole 9f this amount to i)uy worb'!rs. . H12 did th\: s:!me to the two Sll!)S::ic:1uent pRyments of Shso 1,,500/-_onr.1 shs. 1,600/-. In sh\;rt uut ~f th,:? whole ·sum of over. sh·s. 20,uoo/- paid hy t'.L: i...:f~r.•!--nts, both he and thf.:) ;:,l.aintiff got:·nothir.g,. The wh,_ilc, amount w,1s usec! to pay their workers. But Gilyo. arlG•~cl. -tint th•.J plc:dntiff stil_l has a h2l;nt~ of shs. 8,827/95 in his f.::-.vour :-1qc"linst thG defend,'lnts. hccording to him this is t:1. .. • -F'.,;iount which the olainti£f \should h"'lv:..: clnim(~d. lhving r(,viewed i'lll th<= evidenc(~ at length, I will n,>w.; .. rev0rt t,) the issues. Issue on,~. With whom did ·the defendant·s c,.mtr-~ct .for the sale of timhei;-? · i,ccon1ing tu both the def.2r1'1 :nt s0ciQty /and their wi tncss. Gilyv. 1 the con tr net was betwcc2n th,~ society, and Gilya. '°The. pL:1intif·f is ::i str2.nger and th;.,_t if he has ·?ny cluims, h2 '_sh,iulc1 do su through Gilya-. Dut I thL:k theev-hlence_ contradicts thj_s contention. Apart fr 1m th(.} ;.:iv;i.,c1ence of 1;:h,? plaintiff himc<.:ilf \Jhich I beli12ved 1 aii 't:rue, ti11..;re is .tl.k -t~ocumentory. evid,:mce ~xhibi t P. l wh;\.oh is loud ~n~ clear to the eff~ct th~t-the pl0intiff had sold 424 9i0c~s cf Mnin0a timher 1531.60 running metres worth shs. 23, 05'1/ nnd ·thiJt out of this amount shs. ,400/....- was pc1iri L~ovLig a bAl:mce of shs. 23, 454/-. The plaintiff made the :·l,..;fenc1:'.nts execute this docum\';:?nt when it ),ecame cleur ,r,.: _t/{!,~in tpj!J they wauld n,.1t pay him shortly.- The document . · 'bear:: the p.,:l:i:.:mp of the defend'.'lnt society and wns sign~d by • ••• 4l'. ·t ... ) .. its ch~irman. The defcnd~nts ~greed exccuting·this document, but ex ,1;:iir..c!d th,:i.t th~~y did so rm· th1~ understanci;i,ng by Gilyn th~t th.:.:n.! w,:1s no amount 0utshmdin9 ,::ig;iinst then{~ I cannot tJ:):i,nk of ,my <:Xpl:rnati()n morl::? t1c:tiVt~o This docufuent is l:iihJ(~~n the ploint.tff r.1nd the def~nd::mts, rir.,where is Gil ya mentiun2d, ~nd in any ca~e it cl0Arly t~lk~ of a hAlance of shs,o 23,454/- net compl(~te chsch-::irge of,liahility of the def.~n,J:,ntso L,:stly even Gily.:-i himself ,:icknq~1_ledqed that thG"l::'(.= 1rJ:'~, 1.-utstonding ba12nCf~ of shs. 8,827/95 in favour of th,~ pl:::intiff in c:-Jm;)ieh: crrntradid:il)n: .to the stand tak2n by the deferolants. I am th~t2fore satisfied on the evi~ld1cc trnt whatever ~e tht? r1:l'1tiJni:;;hip netween the 1~fend~nts ~n0 Gilya, th~ ~cfenrt~nts ihdepenctently contrcictcd •rith the~ plaintiff for th,-~ SUD:)ly of timl,0.r. I answer th-2 first issue acr:,,rdingly. Th~ answer t~ issue 2 is simple. F0llowing the agree~ent !,Gtw2,:n th0 plaintiff :ind defe:1d,~1nts t:l supply timher the plaintiff Jid suµply the timher as agreC?d, his own evidence and the wri tter. 7cknowl, ➔dgement I?,Y.;~t,;hL!:f'.1ef;::ncJ-::int,~ in Exhibit I:,_._l_ is rel2vant hen,,o On the! evi.dcmd-~ ·:.e}i~·-·'1fl6t:nti:/f~\pupplied thf.: clef,~nJ ,nts with 424 pieces , ·,f Mnin<Ja tim>)er amounting to 153lg60 running metres worth shs. 23,854/-. . . With regard to th~ third iss~e, again I will go by the ;JJ..::intiff's evidence ,1s supported !)y Exh. Pol. I reject the i0f~nd0nt 1 s cleims thnt they p~id Gilya over shs. 20,0)0/- nnd thot this covered the plRintiff's claims. I also reject Gily:i's evidence as lies, Gilya is as much a liar as he is dishon2st. In his evilRnce he s~id it wash~ who had contr=:!ct,2d with the ,·::":fencLrnts, there:by justifying the paym0~ts tu him. Yet he execut~ct a scnaratc document (see back ~f Exho P.l) in which he s~ys, he haj supplied his tim 1)•..:r tc, thtc def<=md,~nts worth 24,000/-, out of which he had recaiv~d shso 16,000/- leavi~g a hnlance ~f sh~.7,900/-. r / -4- ,j- ,, ,It is.;'i,.~lcnr fhen that ,~ven by his own c!drnission nt the 1 ·:. 1;\back'{\/f Exh., P., I, that whn,tever was paid to him •.by the ( {' '. tf~;f;01i:l6nts'' W2.S in satisfaction of his own debt,of shs9 24,000/- and that thes~· payments to him had nothing to do with the plaintiff is hni'ance of shs., 23, 454/-. It was·. quite clc)ar from the w'!:.y both the defendurits' account~nt (DW.l) and ~ilya w;re giving evidence tha~ they wi2re lying and they kn.ew it., I ·am therefore satis1EJ0:d on the evidence thut out of this contracted pric:~, the defend,rnts pc:lid the plaintiff only shs., 400/--. The n.oswer to the 4_th issue is arithmeticalo If ' . ' the defend~nts paid only~hs., 400/~, there is an ·j·~:'·.: outstcmding balance of shso 23,454/".'" c1s claimed by the plaintiff, and' that there is no overpayment., I will. now· dispose of the countc~rclaim. The ... · .. defenchnts counte.rclaimed fot: shs. 446/- being over payment. First of•all there is no ~vidence of such . , over paym,,mt., Secondly even if there was such overpayment, the., d2f~pd2nts should claim it _from the man to whom they eo . made th,; over paymen·t i .. Gilyao Their own pleadings .. are cleo.r ori this., I woul'rt therefore dismiss the counter- claim for shso 446/- with costs., . ,-4} ~~·"\, Lastly to what reliefs ate the parties entitled? The plain-tiff is cert,'.:lirily entitled to be paid the -bal~ncE:! of th,., )rice cf the timher he supplied. to the defendants i.eo the sum cf shs~ 23,154/~. · ·· For all these rec1sons, I enter judgment for the plaintiff as pr0yed Hith costs. Deliverc~d in Court at Mwanza this 22nd day of August, 1981.