20031024 TZHC Dar es Salaam

IN THE HIGH COURT OFT ANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 161 OF 2002 TANZANIA PORTLAND CEMENT COMPANY LTD .......... PLAINTIFF VERSUS OK INVESTMENT (1988] LIMITED ............................... DEFENDANT - - - - ------------------ JUDGMENT KALEGEYA, J: The Plaintiffs represented by Mr. Mbuya, Advocate, sued the Defendants represented by Mr. Koga, Advocate, for recovery of shs.5,820,840/= allegedly being a purchase price of 80 tons of cement. Claimed also is shs.11,835,217.40 being interest on the principal sum at the interest rate of 29% p.a. from 1st January, 1997; interest rate at 29% p.a. on shs.17,656,057.40 (comprised of shs,5,820,840+ I 1,835,217.40); interest at the rate of 12% p.a. or any applicable rate on the decretal sum until payment in full and costs. j The Plaintiffs called one witness who tendered three documentary Exhibits (Exh.Pl - 3) while the Defendants also called one witness. The sole witnesses for the respective parties deposed to have had business relationship for years whereby the Defendants were distributors of the Plaintiffs' cement. However togetherness end there as thereafter each take own route regarding the subject matter in controversy. PWI, the Plaintiffs' Executive Director who deposed to have been the Deputy General Manager in 1996 stated that they used to extend credit facilities to the Defendants; that in November, 1996, the Managing r 2 . Director, Kiponzi, vide a handwritten letters asked for 80 tons of cement on creq.it and that they accepted the request and supplied the same vide Exh.P.l - 3. These Exhibits are Invoice No. 130546, Weighbridge ticket No. 026033 and Internal order or memo No. 439690 (Exh.P 1); Invoice No. 130497, Weighbridge Ticket No. 025984 and Internal order No. 439643 (Exh.P2) and Invoice No. 130493, Weighbridge Ticket No. 025978 and Internal order/memo No. 439645 (Exh.P3). DWI, one Isack Abel, an Operations Manager working with the Defendants, in his main deposition totally disputed the pressing of an order or receipt of the said cement by his Company, insisting that, getting a credit required passing of a resolution by the Board of Directors. Issues framed are:- I. Whether the Plaintiff supplied Defendant with 80 tons of cement worth shs.5,820,840/=? 2. If the answer is in the affirmative whether the outstanding amount had by 24/5/2002 attracted interest of shs.11,835,217 .40 calculated from l/l /97? 3. To what relief are the parties entitled? Upon full appraisal of the evidence tendered including the demeanour of the sole respective witnesses I have reached a finding that indeed the Plaintiffs supplied to Defendants 80 tons of cement. 3 Although the letters, handwritten by the said Kiponzi, were not tendered in court, both witnesses[ had an occasion to scrutinise them as they were annextur'es to the plainf. Upon scrutiny of the same, DWi did I not dispute that the handwriting did not belong to his Managing Director, which naturally should well be vbrsed in his mind as he started working. I with the Defendants' Company. ,fn 1993 and the said Kiponzi has not changed position. By the time !f DWl 's testimony, 3/3/2002, he. was still hold.ing the position of the + anaging Director. After reading them aloud, this witness went on to depose, "It is signed by -Kiponzi. We had used this procedure - the Company here is O.K. lriVestment while our Company is O.K. f ' Investment Ltd." Clearly, the witness is not denying the authorship of the letter although he l tries to pick a difference in the name written thereon. In my view, as compared to authorship, the difftence, (i.e. lack of the word "Ltd") is of minor importance. It is not uncqmmon, in general communications, for even high placed officers in comJanies not to strictly add that word "Ltd" to the title of their Companies iJ communications they make, and more so, in a situation like the one at hbnd, in which informality seems to have played part regard being had t.J the existing relationship between the parties. That apart, PWl uncontfradictorily stated that the. letter was specifically handed in by Kipohzi himself and that they relied on it because of the ''goodwill betweeJ us,,. The witness goes on, · 4 . .: "·We ,did: not .write -a speclfz~ letter to accept the· request but we , , ::entered:a footnote on this vety letter. We kept the letter but gave him a copy. 11 Further to that the witness stated, "/. did not suspect the letterf because the author brought them in II person. PWl goes· on to state that h. was involved in the decision to give 1' the credit. 1 '·: t ' "I recall that we allowed lhem a 10 days credit. I recall this because I was in~olved in ~he decision and there was a special ·reason why we so acted. ·:Thkre was a project going on in DSM and.~.· .:, tender for supply ofcement Lould have been given to the r' factory to effect supplies and we w!re competing with Tanga and Mbeya. Cement Companies and the !Defendant was the supplier ... .......... .. By then, if a customJr did not comply with credit facilities r we were not supplying mo~e credit .................................... For 1 this credit, Defendant was bne of our major customers and there was competition " Thus, PWl 's testimony i not hearsay but what he did and I witnessed. If PWl 's testimony w~s cooked up or hearsay we would have . expected the Defendants to sJmmon the said Manag.ing Director (Kiponzi)as a witness, to contrad~ct the allegation that he is the author of , l . theJette·rs let alone his stated physical visit to the factory. And, where for undi:scl~sed •rea·son,. a party fails tb call material witne~ses on his side, the court is entitled to draw an adverse inference - that is, that if they were 1 I called they would give ·evidence against them or contrary to what they have impressed to the cou·rt (Hemetl Saidi vs. Mohamed Mbilu 11984] TLR 113). The above apart., although Ow 1, in his main deposition (under examination in chief) strenuously itried to impress that their Company could not ask for credit without securing the Board's resolution to that effect, which was strongly challenged by PWl, he ended up contradicting himself blatantly. Under cross examination he stated, j· i "Pressing an order for cement didn 't require a resolution ofBoard ofDirectors ". ,: And this was after he had deposed:! ! I "The Managing Director was authorised to press an order for supply of cement. " From all the above, I am ,satisfied that indeed, the Defendants' Managing Director pressed an ord~r of 80 tons of cement. i Describing the Exhibits, PWl testified: "Apart from the invoice th.ere was also another document called Internal Sales Order and these were for each invoice. It is the . Internal Sales Order l,vhiqh leads to the making of an invoice. . ; . Again, there is a weigh bridge ticket and this shows the weight of I 6 I the •vehicle while entering th~ factory before loading and after loading. · , . · A weigh bridge ticket shows the weight of the vehicle at the point of entry· and the time, ~the vehicles Reg. No., the vehicle's 'I make, the Driver's name and his driving licence and also when ,, going out it indicates the weight and the time. " f . II . Exh.Pl, 2 and 3 show that tons I 35 worth shs.2,425,500/=; tons 35 ! worth shs.2,425,500/= and tons 1b worth shs.693,000/= respectively, I were supplied by Plaintiffs to Defendants. The total value of the cement ! I supplied is shs.5,544,000/=. This figure differs with the claimed amount. of shs.5,820,840/=. In my finding! therefore, the sum established is the i former (shs.5,544,000/=) for whichjudgment is hereby entered. I I What about the prayer for shs.11,835,217.40 being interest? Indeed, in business circles, interest is a natural consequence of unlawful ' retention of ones money. The Plaintiffs are entitled to interest. The I I question is whether the rate should be 29% as claimed. i Unfortunately, the Plaintiffs/did not attempt to explain the basis of that rate. As they totally denied liability, the Defendants also never said a I word about it. That being the case, I will simply pick on what I consider l k to be a reasonable rate. The rat~ of 29% seems to,,,.. on a higher side. I I hereby fix and award Plaintiffs i an interest rate of 23% p.a. on the principal sum starting from Janua~ 1997 up to the date of judgment, and interest at 7% p.a. on the decretal ~um from date of judgment till payment . I in full. The Defendants are also cpndemned in costs. I l I I I ' ' L.B. MLEGEYA ! I Jl.it>GE I I Delivered :i 1,359WORDS ·'Ii', ..... --~:1,..,.\l"""i~ ,I ,,, ,I