19990701 TZHC Tabora

.. lN THE HIGH COURT OF TANZANIA AT TABOF/A •..::..: >2-W ··- ~ CIVlL CASE NO" 14 OF '1995 lATJRENr. CHACP..A PlAINTIFF VF.RSUS 1. YELA:tEL~ RURAL PRiri1..AR1 C~P.ERATIVE SOCIETY ~ 2. WESTE&~ ZONE TOBACCO ) DEFENDANTS GROWERS CO-·OPERATIVE ~ UNION (WET.CU) ) LAURENT CHA.CHA and 86 other tobacco growers are members o:f Yelayela Rural Primary Co operative Society. Through their primary .society they sold. 64r 311 kilograms of tobacco in the 1993/94 season. After deduction of all their input debts the 87 plaintiffs were tL."1.d.crpai.d a total 3of Shs .. 15,258,793/800 Despite de:c.r.ar.1.ds and notice to sue they have not been paid that moneyo They hav~ therefore filed this suit against their primary soc5.ety as the .first defeu ndant P-nd the Western zone Tobacco Growers Cooperative Union as the t1econd de:f:'~ndant joi.ntly and severally. The :fj_rst d~fendant admits t:hat the plaintiffs have been underpaid that amount but lay the blame on the second defe- ndant .. They :1ay that WEGGU (2.nd defendant) is the buyer o.f the tobacco and supplier of the agricu.ltural inputs. The 1st defendant alleges that they are just the go-between between the p1a.int.:L£.f, growe:r.s and the buyers, the 2nd defe- ndant. 1st defendant further :3tate that the 2nd defendant · deducted inpu.t.s de:,ts of other tobacco growers from the plaintiffs' sales. The s,,;;cond de,fcndant alleges that they do not deal with ind5.vidual farmers at ~11 but w:'i:th primary societies orL1y .. They never entered. into any a.g:r-ee2;r.ent with the plaintiff. They admit to hava px:rcha.3ed th0 tobacco from the first defe- ndant and no·t the plaintiffs,, ' - 2 - Out of the 15,258,793/80.clai:ned the second def~d.ant admits to have deducted 13,'1'71,482/80 for inputs supplied on credit · and paid the balance to the 1st defendant. They tehrefore deny liability. They filed a third party notice that if-:: they are found- liable such liability should be born by the 1st defendant. The plaintiffs called three witnesses and tendered nine documentary exhibits. The first defe~d.ant called two witnes- ses and tendered no exhibits. The second defendant called also two witnesses and tendered five documentary exhibits. The following are the issu~s framed at the beginning of the hearing of this c~se:- 1 • Whether the plaintiffs t-iold to any of the defendants a total of 64,311" kgs of tobccco worth Shs.15,258,793/80. 2. Whether the plaintiffR are indebted to the tune of 13, 771,482/80 for agricultural 5nputs supplied by the second defendant. 3. Whether the 2nd defendEnt is entitled to indemnity from the 1st defendant in caBe 2nd defendant is found liable to pay the plaintiffs. 4. What reliefs are the parties entitled to. The first issue is not in cispute. The plaintiffs sold the 64,311 kgs of tobacco worth 15,258,793/80 to the defe- ndants. The second issue tor; is not in dispute. The plaintiffs do not owe the 2nd defo:idant any money for agricultural inputs. The third iseue shouln be split into two i.e. (a) Whether.the 2nd defendant is liable to pay the plaintj_ffs (b) If so whether the second defendant is entitled to indemnify from the 1st defendant. As for issue No.3(a) the 2.nd defendant denies liability. They even deny to have ~-:rought tobacco. They allege it is the first defendant who b"i1ys t:obacco from the farmers. That the 2nd defendant does r..ot enter into contract wi.th individual farmers. .., ., . . ) 3 How do they cJ~ny buying? · The 1st defn:r:,d.ant is cnly the go- between 0r ag~nt between the growers and the union,· 2nd defe- ndanto All thH P.W.s and D.W.s 1,2,3 and. 5 admit that .the buyers of tobacco 1993/94 were the 2nd defendants WETCU. The plaintiff e tendered Payment <) rmtrol sheet~ (Hati ya malipo kwa Wakul.i.ina) Exhibits P.2 ··to P .. 6 for the relevant markets. These are from WETCU with ·sig-n.atures and stamp of the 2nd defendant showing the name of each growe, his regi- stration number., the number of kgs sold to 2nd defendant, their value, his indebtedness and. i:he e.ctual amount to be pa.id by the 2nd defendant to the grower.; Ex.hi.bit P. 7 has a list of growers indebted to the second defends.n.t a.nd the plaintiffs are not. sune of them. Exhibit P.9, a directi.ve issued by WETCD suresses what: is in Exhibit P.'7 that each grower has to shoulder his own dest incurred on agricul t-ural inputs~ 11 Kila mwanachama atabeba mzigo wake wa deni bila k'~1beb~,shwa mzigo wa deni la .mwanachama mwingine. 11 How with all thes.e directive~ -the 2nd defendant decided to deduct other people's debts from the pJe.int.:Lff' .s sales is not excusable. The 2nd defendant maie payments af·ter having all the data from each grower or sellero Sa tho question of their not deali:ng with individual ·growers do!'!s not arise. They have an agent but pay thro~g~ the recor"d~. of each individual seller. So Mr.,, Beaz• s argument of privity o.f contract does not hold water. The 2nd defendants are without e.ny e:loubt at fault to have deducted the pla.i.ntif'.fs money while thE.sy a.re not indebted. Sp the ·2nd de:fandant J..s liable to pa.y the pla..intiffs what they claim as I will clarify hereinbeJ :•'f-' in the last issue. As for issue No.3(b) both the 1st defendant and the second 4efend.ant must have the records of the growers who are indebted. The 1st defenda.nt is one of the primary ~ocieties who form the 2nd defenii.ant co~:rative union .. The 1 at ar.:d .second defendant are a society and a union under the c~x:ip®rative S:ocieti&a Ac:. ,199·1 o Despite the third party notice issued by the 2r-..d · de£1:.~.11dar.1i ci.gainst the 1st def e- . . ~ ndant, dispute betwe~n these ::r..:a~.:·ties .are properly d$S+,t with under Government ·Notice Noo4©d/91 H.1f\t:; 23., Such a dispute ought to . be sent to the Re.gi£trar f')f. Cooperatives. Through the Registrar they can device a way of deduoti.ng the money owed by the indebted gr5wers or which one of the two is to indemnity. the other. ,i 4 ... . . What is most foul- is· for the 2nd defendant to east the debt :J;oad of the indebted growers to ~he plaintiffs. I. find it not proper to order here that the 1st defendant indemnifies the second defendant. I therefore enter judgment for the plaintiffs against the 2nd defendant for: 1. Shs.15,258,793/80 principal sum., 2. 20% interest on the decretal amo.µnt fr~m October, . ' 1994 to the date of full payment. 3. The second defendant will bear the plaintiff' costs. L.B .. MCHOME, JUDGE 30/6/99 • .. Delivered thi.s -1st dfy of July 1999 in the presence of Mr. Kllanga for 2nd .defendant. L.B. MCHOME, JUDGE 1/7/99 I HEREBY" CERTIFY THAT THIS IS A TRUE co~ OF THE ORIGINAL -JUDGMENT. (Y-~,-. ' '. . \ S .B. ·111 I .'NIA DISTRICT REGISTRAR 18/11/99 .. / (./ ~:· ;