Mayala Lucas vs Alphonce Manyanya t/a Manyanya Enterprises (DC Civil Appeal No. 6 of 1998) [1999] TZHC 199 (6 October 1999)

j MWITA, J. lN THE~ H!GH COURr OF TANZANIA AT·TABORA

D/C CIVIL APPEAL NO. 6 OF 1998 (OR'L CIVIL CASE NO. 2 OF 199?) MAYALA LUCAS •••••••••••••••APPELLAN'l' VERSUS ALPHONCE ViANYANYA ) ) t/a MANYANYA ENTER:.)RISES ) •• oRESPONDENT. JUD G M 1: NT Tn 19'7 Alphonce Manyanya (respc,ndent) filed a suit against Mayala. Lucas (the appellant) at the Kigoma. Resident Magiatrat&•s Ceurt to recover Shs.2,285,500/= being the price of goods supplied to the appellant by the respondent. The learned .trial Magistrate entered judgment in favour of the Respondent. Dissatisfied the appellant has come to this court. At the hearing of this appeal the appellant was represented by Mr. Mtaki, learned advocate, while the respondent had the services of Mr. Boaz, learned advocate. At the trial, the respondent had called three witnesses'including himself. PlvI, the respondent, testified to the effect that he was a businessman carrying on business at Kibondo. At the material time the appellant was an employee of Kibondo District Council. Appart from being employed by Kibondo District Council, the appellant was also engaged in business as a shoop keeper. For the period 1993 to 1995 the respondent supplied to the appellant, as well as 100 otlwr people for whom the appellant stood surety, goods on credit. Pv/I tendered a list of goods supplied on credit as.exhibit P.I. which indicates the value of the said goods as Sha.2,285 1 5()0/; :EWI also produced memos the appellBnt used to send him requesting goods on credit. These are exhibit P.2. Exhibit P.3 is an exercise book ,. in which the respondent rec-:,rc.ed r;q-:-r!'.:'. :Jupplied .on credit to customers

D/C Civil Appeal No.6L98 ( 2 ) inclusing the appellant,, Under cro3s-examine.tion P.'11 conceded that as he trusted.the appellant there wer~ no delivery notes issued Jl'Or were invoices raised in respect of good;~ supplied a.t the request, of the appellant. -JZ told the court thet he was a shop amsiatant Oll!Ployed by the respondent; that the respor,ilent had instructed him to the efft that whenever other Suku.ma cuatomE :::-s came to the shop they should be served and that if they- needed gor,,is on credit they should be supplied nd he should keep record of such goods. PW2 told the co'lll't that he kt an exercise book in which he recorded people wh• were taking goods on credit. IW3 testified to the effect that he ia a tailor. He does his own business at the respondents business premises. He accasionally assiste in the resnondent• s shop ,,,hen PW2 is away. He was instructed by the responde?1t · that whenever the appellant requested any goods on -ct .. " .. ~~ ·, ' °" or sent other people to purchase goods on credit he should supply-t~· · · goods and then report to the shop keeper. On Cross - examination -J3 conceded that be kept no record. He used to report to the shop keeper verbally whenever he supplied goods on credit. The evidence adduced in support of the respondent•s claim appears.to. be weak. Exhibit P.I. does not indicate goods supplied to the appellant .. pensonally and goods supplied to the 100 people for whom the appellant ···,' .· ·-' . . · was guarantor as alleged. Exhibit P.I. appears to have been compiled · ...,.£'rom exhibit P.3. Exhibit P.3 does not bear the signatures of consignees ;<, :·, - 1 i i: ;.:,.:,.:.; as acceptance of liability. There were no delivery notes to indicate that the goods supplied on credit had been received by the purchaser. For the whole period of 1993 to 1995 i:1:.')n the goods are said to have been supplied to the appellant end people sent by him not a single invoice was raised claiming the amount due. Memos requesting goods on credit are no evidence the.t the g0ods requested were su1:>plied. The respondent did not call as witnesses any of the 100 people he alleges were supplied with goods on credit. • ~ • i n the request of the appellant. In his written statement of defence-the appellant veh1:mcently denied the claim by.the respondet. When giving evidence in his defence, the appellnt· denied to indebted to the respondent.

... ( 3 ) D/_C Civil Appeal No.6/8 Jn these circumste.nces the evidence adduced on behalf of the respondent does not suffice to prove his claim on the balance of probabilities. The appeal is accordingly allowed with costs. J1J1'(E Delivered. in chambers in the presence of Mr. Mtaki, advoee-te, tor the Ap-pellants and Mr. Boaz advocate for the rentta this 6th day of October, 1999. JUOOE 6L1C/99 •L