20031029 TZHC Mbeya

9Y n . " .·,,,,. ~ ,, •:r(,-.-· IN THE HIGH COURT OF TliNZflNL'\. li.T MBEYI, ORIGINf.L JURISDICTION (Mbeya Registry) (DC) CIVIL /.PP:C:;L NO. 2 OF 1999 (From Mbeya D/Court Civil Case No.52/96) ooooooboooooooooooo Z.PPELL!;NT VERSUS IBESH.,', PRJM/i.RY SOCIETY ••••••••• RESPONDENT J U D G E ME N T JUMi, MAG':Jf.ZA, in this judgement referred to as the f,ppellant, we.s the pl2intiff in ·th.:: i?.esident Magistrate's Court, 2t Mbeya, end the present Respondent IBESH:. PRTI-H;RY CO-OPEIWI'IVE SOCIETIES LTD., was the Defendant. In the lowcir court the ;,ppell::int was defended by Mr. Mwangole and the Respondent by Mr. Mbise, both the learned Counsel. In this appeal the appellcnt epper.,re¢,. r:. ,1rl prosecuted his appeal by himself 9 whereas the respondent 1 s interests v-.rere teken cere of by Mr. Mbise. LppellEmt' s cL .im against the respondent in the RM' s Court was for 0 the sum of T.Shillings 899,000/= only 11 being the b2l2nce due to the appellant ( plaintiff) from the Respondent (Defendant); it being agreed and, or reasomible prices of coffee alleged to have been sold 2nd delivered by the f,ppellant to tho:., Respondent between 10th i,ugust, 1995 end 31st hur;ust, 1995., In defence, the Respondent denied totally that the ~ppellant was/is entitled to any payments at all from the Respondent because, according to the Respondent, the :':i.ppellent was paid all his entitlements in :full by the Respondents o · · Dismissing the suit with costs, the Learned trial resident Megistrate Mr. Bongolc observed that the evidence lacked reasonable ' . that the price of coffee proof on the . balance of prob.3bilities to show grade :ip1 ;i in 1995 was •r .Shs. 1 ,000/= per kilogramme as alleged by the appellant. He settled his mind-on the evidence that the prevaili.ng price 0 •• /2 - 2 - ':JaS Shs.702/= p0r kilor:;rammeo J.nd that sihce the Respondent paid the /.. ppellant at th::it price (Shs,702/= per Kgo) there was therefore no balance rl.ue to be pdd to the appella.nt., !.ggrieved by this dccis ion the 2ppellant oppealed to this courto I h11ve tG~~.en opportunity to go through the ,\ppellant as grounds of appeal which 1:1ere dr.::iwn up in Svmhilio The first ground is irrelevant to this ap11eal c:nd so I will not consider ito Out of the ten grounds listed in his Memor:,mdum of l\.ppeal,' I con see only three material grounds which appe-:)r reasonable to look at and. considered.. For avoidance of doubt I produce them hereunder (verbatim): 2o nooo Hakimu alikatao kupokea vielelezo vyangu ambavyo ni stakabadhi za mczao nG barua kutoka· kwa MBOCU • o Ao iliyowaamuru kupima na kut:::ja bei kwa kilo kilo. 3o Hakimu alikataa kupokea vielelezo vya shahidi wangu wa pili vilivyoonyesha bei kwa kiloo kupokea 4., Halr~rr:-..i. alikaba . · . z ushahidi wa shahidi '.:a:1~~u. \·.·.-:, pili kwa mad.:=Ji ati tumepcngc:i kusaid.iana ka t ika kes i. 5., Ha:·~.:. ........ alikatv:1 kupoker.1 vielelezo vya sh~hidi w2ngu we tatu 3liyehusika kupima mazao yenguo 1\t the hearing of this appeal the l,ppellant submitted that the Lec.rned trial M3gistrate denied him justice by refusing to Gd.mit in evidence his import8nt documentary exhibits on which his case pegged. One document was in respect of the S3le of 534 kgs. of coffee for Shso53L~'!.000/:=, dated 10/8/95; .the second one was _for 1,251 keso of coffee emounting to Shs., 1,251 'lOOO/= dated 23/8/95; the third one, dated 31/08/9~, .w3s in respect of sole of 30 kgs. of coffee valued at Shs .. 30,000/=, all amounting to ToShs.,1'l815,000/=o Th~t the price was· Shs.1,000/= per kilogrammeo But out of the grand totnl of Shso1,815,000/=, the_hpp~llant stated that he wes paid only 'J.'00~:::,675,100/=. Further, he said, Shs.24o,896/= .was debited against his money proceeds because he hGd obtained fertilizer on credit b.:isiso The balance oug;ht to have been T.Shso1,158,104/= (i.eo 1'l 815,000/= - (6'/5.000/= + 24o,896/=) 0 He attempted to show to 11 this court ::i document headed: ST,\ICJ3:,DHI Yi, M:~zfi.Q\ 1 to establish that 3 the money due to him ond ought to be l)aid by the Respondent is the balance 11s shown aboveo However, he 2dmitted th2t the author of the document one H:".DI \·1as not cGlled. to testify on the documento It is also his compbint in this court that efforts by the tri::il court to ccuse the office besrers · of IBESHi, FRIM,.RY SOCICTY to bring documents for scrutiny by the court did not be2r fruit, st1ve for a Lsme excuse that the Chief f.uditor died while in possession of the accounts documents. Even if he died, he urged, the documents still remained in the office and any , accounts clerk in that office could testify on them. In sum, he pr0yed that his appeal be allowed with costso In .snswer, the Learned Counsel for the Respondent Mr .. Mbise asked this court to dismiss the 2ppeel for being frivolous Gnd vexatious on the ground th:::t the -3iipelJ.ant who oueht to h2ve proved his cloim on the probabilities 1 preponderance of. -v -~ u i.e. on the reasonable acceptance of evidence, totally, f2iled to do so. ThGt the refus2l of the trial Magistrf.lte to admit the documentary exhibits WiJS c. ~ight decision because that was done acc0rdinG to Low., The documents, he SP.id, were mere papers bees.use they carried no official rubber stamp of the Respondent's society. f-..s reg2rds the price the coffee wc1s selling by 83ch kilogramme, Mr. Mbise insisted tho.t neither the trial court nor this court could rely on anythin::1; else other th::m the evidence of tho witness, both of the Respondent and of the .~\ppellsm:~ 11 who testified in unison to the <iffect th~t coi't'ee gr::ide :,_p1" \v.Js selling at Shs. 702/= per kilogramme .-:;nd not .Shs.1 11 000/== ,'JS allege_d by the ;,ppellant. The J.e:;;rned Counsel has 2sked the court to rely on the testimony of !.:9j2bu Simkoko (Pd.2) becrmsc the witness hr:?d. a simil.3r case with MBOZI CO-OPEIL\TIVE UNION LTD ~ vide CIVIL Cl,SE N0.8/1996., In t}ut case, ~ccording to Mr. Mbise, ·the District Court h9d confirmed that the price. of one kilogramme of coffee was T.Shs,.1,000/= but on. eppe3l to this court vide (DC) CIVIL ,:,pp ,'\.L NO. 19/1997 this court. (Mw.ipopo, .J .. ) upsot the decision nnd heid th3t · the evidence established that the price of one kilogramme of coffee was Shs.720/= and not Shs.1,000/=. For that reason, oao/4 · · ,; - 4 he urged, Rsjabu Simkoko 1 s evidence should be disc2rded in this case because it is the sc.?me testimnny th=it was rejected in (DC) Civil f,ppe3l Noo 19/1997. In sum, it is the Le3rned Counsel's view that since the rest. of the evidence on record supports the Respondentis cc1se regarding the price of Shs. 720/= per kilogramme of coffee grade ,;p1:\ this appeal should be dismissed with costs because it lacks merit. On my part I begin with the .;'i.ppellant' s complaint on the documentary exhibits., It is true th::!t on 26/1/98 the trial magistrate refused to admit three receipts: one dated 18/8/95 for 534 Kgs. of coffee valued at Shs.534,000/=; another one deted 31/8/95 for 30 Kgs. V8lued at Shso30,000/=, c1nd the third one '~2ted 23/8/95 for 1,251 Kgso valued 8t T o311So 1 7 251,000/-=o The Defendont (Respondent) h;:::d objected to the admissibility of the three documents because they did n,1t .::ippear genuine and 2uthentic as they were not signed and bored no officfal rubber stamp. The 3.p-pellant attempted to cure th~t problem by calling one 'IOBL.S KJ.T/iN MSOI0,Jf~ (Hv.3). He was one a Committee Member of IBESI-L\ PRJMi.~Y CO- -~ER.:tTIVJ~ .SOCIBTY and hi,s duties were, inter alia, to examine coffee sold.·by the farmers to the Unio11 and give them grades; 2lso he was involved in buying coffee from the farmerso He supported the testimony of P\I o 1 saying tlwt the receipts in question were improvised by Ibesha Society when they ran short of the proper docuJnents which were issued by MBOZI CO-OPER.'.,TIVE UNION (MBOCU)., ,'.ccording to this ivi tness, he knew t~x, r·eceipts b-~c--:,use hca was the one who inspected P\1 o 1' s coffee which_ p!;J., 1 sold on three different occasions o The writer of the documents, he said, was the /~ccountant one BODY Y:~TUNG;1 ,:md PW .3 idcnti fied the signeture Gt the bottom of each receipt 2s that of the said accountant. f.s to why the receipts did not carry the signature of the seller and buyer is because payments were never effected on the d~te the coffee was sold and received., explaineg But for rec::sons not •:.,: · ; ·'.lby the appellant the author (writer) of the c.ocwnent was never called to admit or deny the signature at tlle bottom of the receipts as being his. In my considered view, since the .... 0,,/5 5 documents were disputed the duty t~ prove that they were authentic and genuine was on the allege:;; and. not the defendcmt o There was no [~ood explan2tion_ given by the appellant as to why the accountant of the Society who '.12,s alleged to have written those doc11ments was nevei' called to confirm . ' tb.eir genuiness o Also it ._does not come to i;ood sense as to why the receipts were not st3mped vd.th the official rubber stamµ of Ibesh8 Co-operative Society. On the sttensth of that reasonable doubt I am satisfied thzt th~ rejection of those ctocuments by the trial court (upon objection raised) v1ao sound in lew, hence the Appellant 1 s complaint on these three documents is baseless and it is hereby dismissedc 'rl1e _next question is whether it is true in fact that PV.1 .1 sold his coffee 'at ToShsa1,000/::: per Kgma'? · In the first place, with respect, I egree with Mra Mbise that the testimony of :Rajc::bu Simkoko (PVJ.2) does·not hold \\Tatero This is because his ·similar evidence in the original District Covxt Civil Case Noa 8/1996 between him (Rajabu Simkoko) ancl. Mbozi Co-operative Union (MBOCU) was declared by this Court (Mwipopo, J a) :i.n (DC) Civil Appeal Noo19/1997 as being untrueo 'rhe Appellant and Tia jabu Simkoko (F:! o~) appeared to rely on a letter v;ritten by MBOCTJ which sugr.;ested that the price of one Kgmo of coffee grade 1.000/=-= /... per Kgmc This statement is elaborated from the testimony of 'robias Msoln-Ia (Pl·la3) - at paGe 17 of the typed proceedinss which re.ads in part as follows~- .;Before buyi~g coffee we received a letter_. froin the Union iceo MBOCU where they told us _t_~_t__"Q_c:_Yment per Kgo 1· of coffee for Grade Po1 could be advanced ••J-.v _. _ _ ___._ ..,..,., _ _ _ ,.,._.-z-,.--- .... _ - . ~ - .• ---...,...._~_....__..,...__,.~•·••'"-----.-...._..---a_.,_....._,.._,_,.. . ..._r,. _ _.__ .~.:.!._.1_,g_G_oL=...:. So they requested us to check the grades and told us we could :t start buying on 10/8/95., Further they told us ..to transport the said c0ffee up to ,the Industry and then we __ could ~Eid. 1,_00?,L= .J<...Z.:1).~-~~!.o.~:.!." :'(e_mphasis supplied) o It is also P\!I.,3's testimony at the trial court that when they started buying coffee from the farmers· th~Y. nc,wer pairi. them but issued to them· receipts. Then after ,,- year the .Union com/ened a m.e-eting end informed tne farmers that they were no•t-·able to pay Shs. 1,000/= ·per Kgm 0 , but Sl1So 700/= per Kgmo 0. 0 ./6 . Ii 6 In cross-examination Pl o3 admitted as follows (at paGe 17 of the typed proceedin13s): · ·1rn 1995 the farmers were paid 700/= per Kgo :, However, he said that there were few formers who were paid shs 0 1,000/= and this double standord of.payment sparked off.a general complaint from the other farmers who saw those who were paid Shs o 1 7 000/= per Kg o as being favoured., I purposely underlined the \:.,ords in the quoted passage above to show that Pdo3 did not s3.y for sure th':lt the Union had announced explicitly and with assurance that one Kilogramme of coffee Grade :;p1n would be sold at 8hs 1 s000/= 9 and that is why Pl:! o3 appeared to mind i1is words v1hen he D said "'peyment -per Kg. 1 of coffee for grade P1 .co~l.s\..._be advanced et 1,000/=i 1 ., In other words tl--i0 price could be at Shso1,000/= oT less depending on the general price et the world market. As to why one farmer (i.ee Rajabu to say; also in cross-exernination: .iThis letter concerned borrowing money from MBOCU via Ibesha Co-op~ Union. It is written by Rajabu Bimkoko., This letter is written for borrowing money and he was pa id ... o o o o ·: .. The \'.1 i tness (P\·J o3) reiterated that P.J .. 2 was paid earlier than others because :Rajabu wrote a letter through MBECU and the latter recommended to Ibesha Society that he be paido So, in my considered view, that was not to say that the fact that Rajabu Simkoko was given :m advance payment of Shso20,000,000/=, the price of 1 Kg. of coffee was 3hs.1f000/=o And it was for this reason, I surmise, this court (Mwipopo, J.) observed at page 3 - 4 of the typed judgement as follows:- !1Ibesha Co-operative Society could pay only from coffee sales realized by the auction at 720/= instead of at the estim"lted S'.1S.1 9 000/=;. I hold that the respondent (R. Simkoko) never paid. the remainder loon re-payment to the appellant (MB0CU) up to the tune of Shs.5,946,675/85 being the difference in the coffee price drop. He is liable to pay the same. t1:1 1::: D.iG:.trict Court erred to have held to the contraryo The decision of the District Court is quashed accordin~lyi;. ". 7 - From the tot2,lity of the evidence and on the strength of the holding in RAJJ\BU SIMKOKO' S case (suprn), which, with res-pect I approve, I am satisfied and I agree ,vi th Mr o Mbise that the price of coffee Grc1de·:;ip1 ;, in the 1995/1996 season was not Shs.1,000/= per Kgm. but Sl1So702/~ per Kgm. That being the position I hold that the appell;:mt has nothing to claim from the Respondent beceuBe he was duly paid a total sum of Shs.923 7 922/= at the rate of Sllso702/= per Kgrr.o of coffee he sold to the Respondent. And for thot re2son I dismiss the appeal forthwith e.nd order that the Appellant to pay costs of this appeal and the costs bGlow (in the District Court)o JUDGE 29/10/2003