20010313 TZHC Mbeya2

.fu"l>vv-J"'4,, ,, M~"" / I I . IN THE HIGH COURT OF TAijZANIA . AT MBEYA ""'-•--·--- (DC) CTITIL AfP'.&A.L Nill1BER 17 OF 1m (From the decision of the Resident Magistra,e•s · Court .of Mbeya. in Ci't!il Case No.52 of 19o/lY OLAM TANZANIA LilUTED. ~ ••••••••••••••••••• o .AFFELLANT VERSUS .-HALA.WA KWILABYA ••••••.••••••••••••••••••• : ••• RESPONDE.i"rr -- JU.ooMENT In an agreement (Exho P .I) signed b;y the litigants on 2nd July, 1997, the appellant as principal appointed the respondent as her commission agent. The agency was for the purchase of what was elescribed as good q\lality parchment coffee. It was .agreed . :"· that the agent would buy the •()f.fee, in '. consideration of ~,hat is referred to as a commission and a ~ pont: charge, each amounting to shs.10.09 per kilegramme, thereby making the total commission and charge shs~20.oo per kilogram,~e. The agency W¥ created for the coffee crop season of 1997/1998 which would last for tour months c~mmencing on 15th July, 1997. Several other principal terms of the agreement which are directly relevant here are contained in paragrap.¾ 5 of the agreement 1 namely:- (a) that the place of delivery of the coffee was at the premises -,f . Mbo~i Coffee Curing Company, Mlowo area at any wherehouse as instructed by the principal; {b) that for the avoidance of doubt, delivery was deer.ied tto , have been effected upon the principal having tal~en deliver.y; •oe/2 2 ' (c) that where the principal rejected the parchment coffee upon delivery by the agent, it was up-,n the agent to bear the cost of reshiping the 9offee; ( d) thaf when ti,, •• the agent tGnders delivery of parchment . coffee to the ~rincipal . 1 he shall be bound on request to afford the Principal a reasonable opportunity of exmnining the parchment· coffee for the purpose of as.certaining whether they are in conformity with the quality norms of the principal.a On his part, as stipulated in paragraph 6 of the agreement, the principal had the following obligations, that is to say:- (a) to pay to the agent the requisite commission after the full··.· and final settlement of all accounts; (b) to tntiet all expenses, including transport and incidentals, related to the transi,ortation of the parchment coffee from the buying post to the a:;:ipointed place of delivery; .Cc) to provide to the agent the necessary documents ,r;e . · including Goods Received Notes ( GRNs) and a co.py_ of the advance payment voucher; · (d) to provide such sum or sums in advance to enable the agent to purchase the parch~ent coffee on behalf of the principal; (e) to provide weighing scale properly· stamped I by the Weights and Mo3.Sures Department at the buying post; and . (f) to make proper fumigation of the buying post if required., It was further agreed in paragraph 9 that for the purpose of ascertaining the accounts bet~cen the parties - (a) the qu:omt:i.ty delivered. and the value of the same was to be as per GRNs duly endorsed by the principal; (b) the sums advanced were to be recovered by way of deductimn with the v2..lue of parchment coffee actually delivered save in case of difficulty .... /3 3 • whore the principal·could exercise her right of sale that was created by the collater1,3.J.J ( c) th.at despite the provisions of sub-paragraph (a) of paragraph 9, the signing of the agreement by the agent or any subsequent acl'-Jiow~~dgement in the principal 1 s documents or books by the agent was sufficient proof of amounts received by him from the principal and of outstan_ding liabilities owed by • the ag\:!nt to the principal as reflected in the latter's books of account; and (d) that the principal_had a lieu on the agent's commission and buying post charges in case of any outstandings arising from the a~ounts adva'lcedo It seems that differences arose between the principal and her agent over actual quantics of coffee that ·the· latter del_ivorcd to the forme_r and the value thereof. i_lS a result the principal brought a civil action ::against her agent before the Court of Resident lfagistrate c:itting at Mbeya, which became EoH~ Civil Case Noo52 of 1997,. It wns cft.-e-Ft--c.cd in the amended plaint that in breach of the contract . _·for the purchase o~ parchment coffee, the defendant (.,-,ho was the agent) did not deliver coffee 1-1orth shsG3 1071 ,332/- and that he did not account for that sum o·f money at the cl~se of the season. It also averred that the collateral for the sum of money tha.t was advanced to the defendant was a house. So the plaintiff prayed for the following reliefs:- 1, ~ayment. of shs.3 ,071,332.,00; · 2o an order for foreclosure; 3. a,,~ order of sale; 4. interest at 3916 per annum from the date of·the suit to the date of judgment; 5. c~sts; and 6e the usual ... prayer for !3Il.Y other relief the Court may deem justo The defend.ant denied liability. The foregoing were the pleadingso The plaintiff and the defendant called • 0 ./4 4 on~- witness each¢ Joseph Mahyakende (FW1) testified for the plaintiff. ... •;., He swore that a goods received note {GRN) was :i;aised for each delivery of eoffee. That the GRN had three copies: the duplicate was given to the defendant in acknowledgGrrtei).t.·~fthe coffee he delivered. ;Lt was the plaintiff's case that a total of shs.164 1000 1000.00 was advanced to the defendant who accounted only for a surn of shs.158,723·,367.oo. He, therefore, failed to account for a sum of shs.,5,f33 1 133,oo. Since, however, he was entitled to shs.2 1 661 1 701.00 as commission, and when that sum of money was sot off, there remained a sum of shs.3,071,332.00. This is the sum of money on which the suit was founded. J ose:ph Mahyandeke (PW1) tendered in evi'dence a number of GRNs which were marked as Exh. 1 to 6. Of these 1 he said, GRN No.6737 brought controversy. It was evidence of the delivery of 64 bags of coffee; for instead of recording total of 3176 kg. they recorded 5355 kg. Thus he claimed that there was excess weight of 21i79 valued at· shs.2t387 1950.00 in fa:-;our of the defendant. PWl swore that since a bag of coffee has a sta.>1dard we~ght of 50 kg, 64 bags" ;ould not ha\re made 53555 kg 1 the weight, he said, 1w.a 3176 kg. \!J'hen cross- examined P\J1 stated that the defond2,ht bought and delivered 14L1.·;242.7 kg. vaiued at shs.166,023 1 667~00 because he ;'doubled" the GRNs. He.thought the - actual weight that was delivered by the defendant was 133,817.84 .which was . valued at 159,456y557.oo. That there cdso waa vshat \Ja~ described as weight loss 1 being the differ<:mce between the weight of cof-fee with a _higher moisture content when delivered and the weight e.fter the coffee had been dried. This was found to be 732,790 kg worth a su.m ("If shs.732',790.00. PvJl testified further that he was the Unit Administrative Manager, it was his assista.."lt ·who raised the GRNs., When further questioned. he said that they did not reject the coffee with a high moisture content; they took delivery of it and then dried it; and that the defend.:mt w2-s not called to be shown the moisture la.den coffee 'before it Weis dried and that it••• 'fhis •\.,as a breach of contract ••.ii.• · · Only the defendant testified for the defence. He admits to have entered into a crop pu.rchn.se a.c;oncy agreement \.."'.i.th the plaintiff! following 3 whore the principal . could .. exctcisc her righ~ of sale that was created by the collateral; ( c) that despite _the provisions of sub-paragraph ( a) of paragraph 9, the signing of the agreement by thG agent ·or any subsequent acY-nowlodgement in the _principal 1 s documents or books by the agent was sufficient proof of_ amounts rec'eived by him from the principal and of outsta,~ding liabilities owe~ by . the agent to the principal as reflected in the latter's· books of account; and ( d) that the principal had a lieu on th0 agent is commission and buying post charges in case of any outstandings arising from the amounts advan.ced. It seems that di fferonces arose between the principal a,.11d her agent over actual quanties of coffee that the latter delivered to the former and -the value thereof" As a_ result the principal brought a civil action _:;~ainst her agent before the Court_ of Resident Magistrate citting at Mbeya, which became RoM~. Civil Caso No 052 of 1·997. It wns ~e-I'lfc<f in the amended. platnt that_ in breac'h of the contract ·.-•for the purchase of parchment coffee, t}1e • defenda:b.t C\·Jho .was the agent) did not deliver coffee Horth shsa3 1 071 ,332/- and that he did not account for that sum of· .money . at t:qe cli:-se , of the season. It also averred that the collateral for the sum of money the.t was ap.vanced to the defendant was a houseo So the plaint_iff. prayed for the fol).owing reliefs:- 1. payment of shs ,.3 ,071 1532 .. 00; .. ( . ' 2 .. · an order for foreclosure;- 3·. a."l order of Sq.le; 4. interest at 391, per a.1111um from the· date of the suit to the date of judgment; 5., costs; and 6., the usual ~raJer for "illy other relief the Court may de~m j.ust. •'• .... The defendant denied liability., The foregoing were the pleadings~ The plaintiff and the defendant called • 0 ./4 4 on"',. witness eacho Joseph Mahyakende (PVJ1) testified for the plain,tiff. He swore that a goods receive.d note (GRN) was raised for each delivery of eoffee. That the GRN had three copies: the duplicate was given to the defendant in aclmowledge.m~tr<:fthe coffee he delivered.. It was the plaintiff's case that a total of shs.164,600 1000.00 was advanced t~ the defendant who accounted only for a sum of shs.158,723,367 .. 00. He, therefore, failed to account for a sum of shs.,5,t33,;33.,oo. Since, however, he was entitled-to shs;2 1661 1701.oo as commission, and whey{ that sum of money was s·et off, there remained a sum of shs.3,071,332.00. This is the sum of money on which the suit was founded. Joseph Mahyandeke (PW1) tendered in evidence·a number of GRNs which were marked as Exh. 1 to 6. Of these 1 he said, GRN No.6737 brought controversy. . It was evidence of the delivery of 64 bags of coffee; for instead of recording total of 3i76 kg. they recorded 5355 kg. Thus he claimed that there was excess weight of 21?9valued at shs~2,387,950.oo in favour of the.defendant.· PWl < swore that since a bag of coffee has a sta..>1dard wei.ght of 50 kg, 64 bags could 1 not have made 53555 kgi the weight, lie said, ·iws 3176 kg. vn1en cross- examined P\;J1 stated th2,t the defendai1t bought and delivered 144 1 242.7 kgo valti.ed at shs.166,0231667 ,,00 because he 11 doubled•; the' GRNs. He. thought the -actual weight that was deliverccl by tl1e defendant was 133,817.84 ·t,hich was • · valued at 159,,456 1 557.,00 •. That there also was what \Jas described as weight loss 1 being the difference betw.een the weight of coffee with a higher moisture content when d.elivered and the weight ester the coffee had been dried. This was found to be 732 ;790 kg worth a sum (') f shs. 732,790 .oo. PWl testified further that he was the Unit Administrative Manager., it was his assistant it1ho raised the GRNs; When further questioned he said that they did not reject the coffee with a high moisture content; they took delivery of it and then dried it; ai1d that the defend31lt was not called to be shown the moisture laden co-ffee ½efore it was dried and that "•·• • 'l'his was a breach of contract •• ii_._ Only the dcfcnclai,t testified for the defence. He admits to have ' entered into a crop pv.rc)13.so ac;cmcy agreement <.:."'i.th the plaintiff, following -.a/5 ..:. 5 which he was advanced a total sum of shso 164,456,460.00, He stated further that he, by the end of the season; bought coffee worth shso166 1023,667.oo. Inferentially, he means that he h9-d to spend his money amounting to shs. 1,567 1 267 .oo to reach that amou...'1.t. He admitted also that some 51 GRNs were issued to him in acknowledgement,of deliveries of coffee he made to the plaintiff• That according to those GRNs he bought and delivered a total of 144,242.7 kg ~r' coffee worth shs.166,025,667.,00. He denied that the plaintiff ever told him that the coffee he benght··,bad a high moisture content• After considering the evidence the learned trial Senior _Resi_dent Magistrate observed that:..:. ".a. in answer to framed issues and on preponderance .of probabilities it is not clear from the evidence of both sides what value of coffee was delivered by the Agent to Principal. in respect of the awanced monies by the f-rincipal. According to the ivhole- .ev,idence' adduced there is doubt if the~e was any excess of coffee supplied by the ,\gent. to the Principal all and abqve the advanced monies. To meet the ends of justice the suit is partly dismissed and the parties are ordered to sit down on mutual ·understanding to determine on the actuall initial delivt;)ries of coffee forgetting -the allegations__ of moisturcd coffee and replacement of GRNS for the purposes of ·determining the actual ' ~ commission entitled to the I1gent and actual balance of the· advanced monies if any to be paid back by the Agent to the Frincipnl. Article 9 ( a) and (b) of U~e AGP~MENT FOR PURCHA::IB OF • PAR"fC"tl~G:NT CO:F'F.s::I: BY COMMISSION . hGENT ON BEHALF OF OLAM TANZANIA LIMIT.SD is to be obeyed_?Y the both parties. In the circur.ostances this suit was filed against the Agents. I, order each party to bear the costs ,.r, Both parties were ~ggrieved; the ::pJ.aintifX appealed and the defendant cross- appealed., I will consider the appeal fir;t., Four grounds tsiere raised in the appeal as follows:- 1 • that the learned trial Resident Magistrate erred on :putting too much weight on.the issue of weight loss in the course ,of his judgment, ·when the value of the weie:ht loss was Tshs/7.32 1 790/- only compared to the 6 cash 'out~tanding:; that stood at Tshs.3,071 1332/-; 2~ that the learned trial Resident Magist:uate erred on his failure to decide the case on the evidence available; 3. that the learned trial Resident i"iagistrato erred on considering the Res~ond~nt's defence as a cross~ suit, when there was no counter-claim, cmd this led . . him to a wrong conclusion; and 4.- that ·the lea:t'i:tcd trial Resident Magistro.te did not understand the Plaintiff's case before him otherv{is.e .. there are answers to all the_ questions raised by him in ibe course of his judgment 1 on the record which ~1'as before him. Those wore the facts e Legal arguments . were r;rcse'nted by co~el who were directed io argue the a11peal by way of written submissions. Hr. Mbise, learned counsel for the appellant; wo.s directed to file his submissions by 30th August, 2000 and the rGspondent was to do so by 1;3th September, 2000. Mr. Mbise s;ubmittcd his arguments for fili~1g within time; the respondent filei his on 18th September, 2000; five d&.ys out of time and without leave of Court• Hence Mr, Nbise, l.eo.r,1ed counsel for the a7-pe1 lcmt, urges me to have the res,pondent's written argll:ffients rejected. He did not say why. Now 1 what is the effoct of a court order. that carries instructions which are to be carr,ied out within a pre••determined period? Obviously such an order is binding. Court- orders a.re made in order to bo implernonteEi, they must 1.,y be obeyed. If orders made by 'courts are disregarded or if they are ignored, the system of justice will grind t6. a harf or it will be so chaotic that everyone will decide to do only thQ.t \-ihich i,s convenient to them. In addition, an order for filing submissions ,is pci.rt of the hearing. So if a party fails .. to act within the -prescribed timo ho will bo guilty of ind.iligence' in like measure as if he defaulted to arpe&r. That being the position the respondent cast to the winds his right to file final s11') 1issions., 10 It follows, then 1 the submissions whiah were filed out of time by th:::: respondent will not be acted eo,./7 . 1 . ;;:111 'lr- on. So there are only Mr-. Mbise' s £iubmissions to consider. (-'! •Mr .. Mbise begins his arguments vii th a r.~count of the events and the facts .- which· crystalized into these proceedings. He underscores the crux of the dispute by saying that the coffee ,V:!ich v:as d0livered by th,e respondent was · tejected by t~e factory because of its high moisture content., So the appellant had to dry it·bofore it was accepted., Thi~ process reduced the weight of the coffee that the respondent delivered to the appelle.nto According to PW1 the difference in weight came to 732~70 with a value of shs.,732,790.,00. It is contended that the respondent should be resr,onoible for this loss• This claim was rejected by the trial court" I a.'11 asked to accept it. Now, according to paragraph (5) (a) and (b) of the agency agreement delivery was deemed to have been effected upon the appellant ,-:i.fter the latter took possession and that the point of delivery was on the premises of the Mbozi Coffee Curing Company at MlowoD It is undisputed that that is exactly where ~ the respondent delivered the coffee to the appellant's other agent_. · It would seem that where the principal had doubts about the, quality of the coffee paragr~ph ( d) of paragrn.ph 5 of the agreement would become a3:iplicable,. It provides that when the agont tendered delivery of coffee to the principal, he (the agent) was bound on request to ::.i.fford tho prin-::ipal a reasonable opportunity of ex~~ining the coffee for asccrtaininr whether it was in conformity with ;ithe quality norms of the Principal'.J··; There is no evidence that the appellant ever required the rcsJ)ondcnt to hr:ve the coffee eX<'1111ined. Even if it is assumed that the respondent delivexed \v~t coffee, there· is just no evidence to prove. that facto In fact circumstancef: at the point of delivery r: militate agaii;is~ the appellant o First; the coffee waF delivered to his agent who raised no objecticm; secondly, the exwninatian of :he coffee as a result of which it is claimed was fo'un'ci t'c b'e wet was done b:!hind the respondent's back and contrary to the letter end spirit of tho contract. More importantly, paragraph 9 (a) of the agreement provides that the quantity and the value of the ·it was to be as per GRN duly endorsed by the p::-incipal. Evidence from the plaintiff from the defence left no doubt to the fact that every deliverywas ••• /8 . . -• witnessed by a GRN that was duly endorsed. The appellant 1 therefore, .is . estopped from denying that the,eoffee delivered by the respondent was not as shown on the various GRNs which were tendered in evidence by one Joseph· Mahyakende (PW1). Accordingly, the first ground of appeal in which it is contended that the learned trial Resident Magistrate erred in putting too much - . weight on the issue of weight loss which stood at shs.732~790.00 compared ,-.o the outstanding amount of shs .. 3 1071,332400 would fail. It would also fail because according to Hr. Mbise<, learned counsel for the avvo-llmit, in as much as he said at the bottom _Of po.ge two of his written arguments, the documents which were executed when the appello.nt was tnking delivery of coffee from the respondent - n • .• • . j.nclud<;; the nunfber of the motor veb.icle used, the moisture content, coffee receipt GRN11 • This implies that the appcllo.nt was aware, at leMt there is reason to believe so 1 that she could hEtve easily noticed inferior coffee at the time of delivery. Co~equently, she cnnnot be awarded o.amagos for alleged losses which were bro_ught about by her oHn failure to abide by hGr 01rm procedures• Mr. Hbise argued the,t the second problem that occurred during the currency of the agency agreement reL1.ted to G:::ZN 6737,~ I\.ccording to the evidence that document was for a consigru-;ient of 64 bags of coffee.. It was th~ plaintiffis case that that consignment weighed 3176 kilogr2.rnmes; instead the weight was incorrectly recorded on the GRN as 5355 kilogra.rnmes. It was contended, therefore, that there was an error which gave rise to weight loss of 2179 kilogrammes worth 2 ;287 ,950.00o ilccording to the plaintiff? s•.~.oase, therefore, the actual weight was not s~s.5,622,756.,00 as shown on the disputed GRN 6737; it was shs.3,334,800.00. As l'lr. Mbise has pointed out the trial court did not decide this sticky issue. He has invited me to do so, which,, indeed, I must do~ The crux of the matter here is whether indeed the -respi'."ndent delivered 5355 kilogrctnm1es as regc.rds GRN 6737. It w2-,.s in the i,18.intiff' s evidence that the bags used would bo loaded with coffee ·.-Jeighing an average of 50 kilogrrunmes e • ./9 7 9. , per bag. On that evidence 64 bags x 50 kg would bring a total of 3200 kilogrammes. Thus the weig..l:tt of 3176 1•1hich it is alleged 1r1as realised from GRN 6737 of 3176 kilogrammes is within the range of the plaintiff's case. The respondent s2.id nothing concerning this particul2.r GBN • All that he said about the :tffiNs is that they were is.sued by tho pl.::..intiff, the originals of which the plaintiff tendered in evidence e.S exhibits• This implies that the weight of each consignment was correctly vcrificdo Now 1 in order for the consignment relating to GRN 6737 to bear the weight as shown on it, each bag of coffee weighed 5355 kg~ 64, namely, any average of • 83.63 kilogrammes. No evidence was adduced to establish that those bags wer~ incapable of carrying that weight~ What compounds this issue is the fact that the person who took delivery of the coffee from the defendant was not called to testify on this important mattero Indeed, Joseph Mahyakende (IW1) did not testify that he ever rewcighted the disputed bags and found the actual weight of that consignment. It follows that all there is here is no more than blame that is cast on the respondent, leaving untouched the person who took delivery of the coffeea For there is a reQl P,Ossibility for that person to have stolen the coffee himselfn So the omission to call him into the witnessed box to have his veracity tested has weakened the plaintiff's case. I would, upon re-appreciation of the evidence, hold that the plaintiff failed to prove her claims in this behalf• Uph..ll the foregoing considero.tions the second ground of appeal in which it-is alleged that the learned trial Resident M3gistr~te failed to decide the case on the evidence available and the fourth issue in which it is complained that the trial court did not understand the plaintiff's case have not bee~. substan°f;_iated., It is alleged in the third ground of appecl that the learned trial Resident Magistrate erred in considering the respondent's case as a cross-suit \then there was no counter-claim. This ground was not argued;. by necessary inference I deem it as having been abandonedo ~ •• /10 • • 10 Upon the foregoing considero.ticr.:.s the appeal fails 311d it is hereby dismissed with costs. Delivered. For frppellant Mr. Mwangole 1 1-\.d:vocate: For Respondent. Certified true copy of the original Judgement. DI S'I'RI CT REGISTRAR HBEYA