juma kuziwa ta sheba enterprises vs tanzania telecommunications ltd 2014 tzhc 2164 31 october 2014

IN THE HIGH COURT OF TANZANIA AT MWANZA HIGH COURT CIVIL CASE NO. 09 OF 2006 JUMA KUZIWA t/a SHEBA ENTERPRISES.... PLAINTIFF VERSUS TANZANIA TELECOMMUCATIONS COMPANY LTD .......................................................... DEFENDANT JUDGMENT BUKUKU, J.: The plaintiff, represented by Mr. Nasimire, Learned Advocate prays for judgment and decree against the defendant, who is represented by Mr. Mwaisondole, Learned Advocate as follows:- (i) The sum of T.shs. 3,100,000/= and interest thereon as per paragraph 10 of the plaint. (ii) The costs of this suit. (iii) Any further and other reliefs that this honourbie court deems just to 9 award. The plaintiff called one witness and tendered four documentary exhibits (Exhibit P I - 4). The defendant called two witnesses and did not produce any documentary evidence. Issues framed were:- (i) Whether in December, 2003, the defendant made an oral order with the plaintiff for the supply of one piece of clutch plate and one piece of pressure plate for its Mann Truck with Registration No. SU. 33494. (ii) Whether the plaintiff has ever supplied to the defendant the said clutch plate and pressure plate. (lii) If issue No. 1 and 2 are in the affirmative, whether the plaintiff is entitled to T.shs. 3,100,000/= as claimed. (iv) To what reliefs are parties entitled to. Circumstances leading to the controversy at hand are as follows:- That sometimes in December 2003, the defendant made an oral order with the plaintiff for the supply of one piece of clutch plate and one piece of pressure plate for repairing the plaintiff's Mann Truck with Registration No. SU 33494. It is further alleged that, previously, the defendant had handed over the samples of the said goods to the plaintiff's agent, one Khatibu Mkongo, as per the gate pass, (Exhibit PI) in order to assist the plaintiff in locating the proper spares. It is further alleged that, on 23rd December, 2003, the plaintiff supplied the defendant with the spare parts and invoiced the defendant through his invoice, No. 053 of the value of T.shs. 1,300,000/= and Invoice No. 056 of the value of T.shs. 1,830,000/= (Exhibit P2), making a total of T.shs. 3,100,000/=. According to the plaint, having received the invoice, the defendant returned the said spare parts to the plaintiff, alleging that the price was too high. On 4th March, the plaintiff instructed his advocate to return the said invoices to the defendant and demand payment on behalf of the plaintiff. Still the defendant returned the said invoices to the plaintiff's Advocate, denying any knowledge of the order for the spare parts. The defendants having been served with a demand notice, formally acknowledged the said order but refused to pay on the grounds that, the 4 price for the said spares was on the high side. Accordingly despite notices and reminders, the defendant refused to pay, hence this suit. The testimony of Juma Kuziwa (PW1), the owner of the spares was that, sometimes in October, 2003, he met one Mhando (DW2) who informed him that, they were looking for spares for their truck and they could not get them. Later, DW2 gave them the samples of the spares. According to PW1, somewhere around December, 2003, they managed to get the spares and informed the defendant who in turned, prayed to be supplied with an invoice. PWi did what he was told, and upon the defendant receiving the invoice they told PWI that the price was on the higher side and therefore they cannot take the spares. PWI further testified that, since such a car was not available in town, he could not sell the said spares to anybody else. He thus filed the suit having consulted his lawyer. The defendant evidence, in particular is that, DW1 Mr. Johnston Buberwa Mutashobya, told the court that, the defendant never ordered spares from the plaintiff verbally because, as a company, they had procurement procedures. According to DW1, they normally issue LPO's which details the order itself, and after agreeing on the goods and price, it is when the supplier is allowed to supply the goods. DW2 further told the court that, they did not’ acknowledge the spares since one cannot supply goods without an LPO or a delivery note. Asked about Exhibit PI, DW1 told the court that, it is true the gate pass was issued by the defendant but then these spare parts could have been taken for a different reasons e.g. repair etc. DW2, Mr. Oswald Mhando also testified. He told the court that, during that time, he was a team leader - support services. He agreed that they used to have a truck, make, Mann which was not working and were looking for spares. DW2 further testified that, one day, one Khatibu visited their offices and enquired about the spare parts. According to DW2, this Khatibu told him that he can procure the spares for the defendant. According to DW2, he instructed the stores officer to work with Khatibu to get the spares, and told Khatibu that, as soon as they get the same, he should inform him about the supplier so that the defendant raises a request for procurement (RFP). DW2 told the court that, they never received the RFP. Narrating the procedure for procurement, DW2 told the court that, all procurement contracts must be in writing. First, there must be a request for procurement which is supplied to not less than three 5 suppliers. After that, the stores people satisfy themselves if the suppliers have the materials, then the suppliers submit their quotations and having checked the price, the lowest bidder is issued with an LPO. The supplier then brings the goods together with .a delivery note and issue the defendant with an invoice and that is when the goods are received and finally the payment follows. Considering that the defendant was not issued with any quotation, DW2 told the court that, they did not receive any supplies from the plaintiff. Asked about Exhibit PI, DW2 told the court that indeed it was a gate pass given to one Khatibu who took the samples of the clutch plate and the pressure plate in order to find a supplier, which never came. According to DW2, the problem was on the procurement procedure and also the price was on the higher side. Briefly, that was in substance, the evidence 'which was tendered during the trial. Both counsel opted not to file final submissions. For that matter I continued with the preparation of this judgment. Now, coming to the first issue, whether the defendant made an oral order with the plaintiff for the supply of the spares. According to Exhibit PI, It clearly shows that, on 15th October, 2003, a gate pass No. 109172 was issued to one Khatibu Mkongo by the defendant. The contents ol Exhibit PI shows that, one pressure clutch and one clutch plate of the truck were collected by Khatibu Mkongo. The issue is, for what purpose, While paragraph 1 of the plaint alleges that there was an oral order, PW1 in his testimony never mentioned about the oral order. What he told the court is that, DW2 told them about the spare parts and later he gave therr the samples which they took. Unfortunately, this Khatibu Mkongo was never called by the plaintiff to testify. I consider this person to be a material witness. One would, naturally, have expected the plaintiff to call the said Khatibu Mkongo tc give evidence. He however did not do so, nor did he give any reason why the said Khatib Mkongo could not be called as a witness. It is trite law that, failure to call material evidence by a party entitles the court to draw adverse inference. As was stated in Hemed Said V. Mohamed Mbilu [1984] TLR 113:- "Where for undisclosed reason, a party fails to call a material witness on his side, the court is entitled to draw an inference that if the witness were called they would have given evidence contrary to the parties interests." I find the plaintiff's behavior is pregnant with secrecy, half­ disclosures supporting inference that he had knowledge of what happened and that he (they) did not comply with the procurement procedures as told by DW2. PW1 does not admit that, they were told to look for the spares first, and not to buy them. It does not get into ones' mind that, even before negotiating the price, one procures the goods and supplies them. That is why even in his testimony, PW1 did not tell the court under what conditions that they were given the spares. I am of the settled view that, what DW2 told the court is what transpired. He was the one who instructed the stores officer to work with Khatibu Mkongo to look for a supplier, he also told Khatibu to inform him about the supplier, as soon as he gets the spare parts. Upon being cross examined DW2 told the court that, he knew Khatibu since they came from the same district, but did not know that he was working with PW1. All this t goes to show that, what PW1 did was not what he was told to do. Under such circumstances, I hold that, there was no oral order made between the plaintiff and the defendant for the supply of one piece of clutch plate and one piece of pressure plate as alluded by the plaintiff. For that reason, I answer the first issue in the negative. Coming to the second issue, whether the plaintiff supplied .the defendant with the said spare parts. According to PWI, the defendant was supplied with the spares sometimes in December, 2003, and that, after he had raised the invoice, that is when, he was told that the price was too high. We have Exhibit P2, the invoices, No. 053 and No. 056 all dated 23rd December 2003. We also have Exhibit P3, a letter from the plaintiff's advocate, addressed to the defendant with Ref. No. GC/25/2004. This letter is dated 4th March, 2004. I think for brevity, I shall quote this letter in part as follows:- "Area Business Manager, 4hMarch, 2004 P.O. Box 1442, MWANZA. Dear Sir, RE: M/S SHEBA ENTERPRISES Please find enclosed herewith, for your necessary perusal and action two invoices from our above 9 mentioned clients which have been passed to us by them for onward transmissions to you. We shall be grateful if you would arrange to pay our client the sum o f T.shs. 3,130,000/= as per the said invoices. Yours faithfully, (Sign) Nasimire and Company Advocates Enclosure. CC: M/S Sheba Enterprises P.O. Box 6188 i Mwanza Surprisingly, the invoices are dated 23rd December 2003, while the forwarding letter is dated 4th March, 2004. It is not clear if the said letter was related to the invoices, considering the disparities of the dates. That notwithstanding, soon after receiving Exhibit P3, the defendant responded. Exhibit P4 is a letter from the defendant to the plaintiffs' Advocate with Reference No. DF.3250 dated 16th April, 2004. According to Exhibit P4, the defendant does not deny that this Khatibu visited their premises between September and October 2003, whereas he met with DW2. According to Exhibit P4, it is also true that this Khatibu was availed with samples of the spare parts, but that, as soon as he was availed with 10 the same, he was reminded to provide proforma invoice indicating the actual price in advance to which he agreed, but did not produce it and instead, got the she pares and tried to supply the defendant with the same, which did not match those of the defendant and were rejected. According to Exhibit P4, the allegations that the spare parts were delivered and kept by'the defendant up to 27th December 2003, is fabricated since, Mr. Khatibu left with his spare parts soon upon being advised that the defendant could not purchase the said goods contrary to the laid down procedures and also that, the price quoted in the invoices was too high. From the above therefore, it is obvious that, much as the plaintiff had wished to supply the defendant with the spare parts, the same were rejected and returned to the plaintiff. For that matter, the defendant was not supplied with the spare parts. Considering that issues number one and two are answered in the negative, the issue whether the plaintiff is entitled to T.shs. 3,100,000/'= as claimed, dies a natural death. In other words, the plaintiff has miserably failed to prove his case on the standard required by law - balance of probability. It cannot be said that there was an oral contract between the parties, nor was there any binding arrangement between the two to form an enforceable contract in law. It is trite that, even where there it is an oral contract, in order for it to be legally complete, the following six elements must be present. These six elements include, offer, acceptance, mutual consent, capacity, consideration and legality. If any one of the six elements * is missing, the transaction is not a legally complete contract. Considering that the plaintiff has failed to prove the above six elements, then there was nothing to bind the defendant. With this deficiency, I hold that the plaintiff has failed to prove its case. Consequently, I dismiss the suit with costs. Order accordingly. A.E. BUKUKU JUDGE Delivered at Mwanza This 31st October, 2014. 12