Elly Masawe t/a Elix Supplies vs Western Tobacco Growers Cooperative Union Ltd (Civil Case No. 23 of 1997) [1999] TZHC 193 (5 August 1999)

.. ... • . ~ . ..,. ..... ··. ~ . ,.... ... ..-_i MCHONE, _Jo INT HIGH COUri.T O'i' TAN.t.ANIA AT j7AJ>OtiA CIVIL CASli: N0.23 Uh' 1997 EU.,~ MASAWE t/a ELLX SOFPLlES WEST.i!,;kN TO.BACCO GkOERS CO-) OPt·IVE UltXOli LTDo - ~ . 0 O O 0 !; -_. .. /.~ PLA.I.NTIFF The plain.ti! f, £illy Masawe, trad.i.ng as Elly Supplies~ is suing the Defendant, Western .0158.cco Growers Cooperative Union, in short, WTCU, for Shs27,, 176,000/, for goods supplied by ·, the plaintiff to the defendant. . _ The plaintiffs· case is that by various L .. Pouo&t• the defe- ndant ordered the plaintiff to .supply him with va:rious goods, including 6,000 pieces of flue pipes worth Shs.,2.7 millionso 200 bags of cement and 280 roofing shees, both worth S.hs.,3, 1bO,OOo/"'• 40 bags o:f cement and 20 bags of limestone, known in kiswahili as 11 chokaa", l>otb, items val.ued at a total.

• of Shs. 754,000/=o The plain.ti.ft' deman.ded payment by various invoices but he was paid only Shs~4r,000p000/11::o He Ji.s. n.ow suing for the balancee The defence -case is that the pl.fJti.nt.i.f.f' .s claims are not genuine. Those goods are alleged to have never reached the defendant. Do W o 1 P the Acti:o.g General !vl..anager claims that those delivery notes ~its P.,2 and Po3 are not genuine. They were signed by thelr (de:fenda'lt 1 s) storelt.eeper one Luta Labia who is ow facing fraud charges in courto But D.W.1 admits that they ordered .for the Xlue-pipes and building material.a and paid 4 million shillings advance for the pipeso But he claims 'that these pes were not received as the d.eli.very'notes do not bear the registration numbers of the vehicles which delivered themo The issues of this case as framed at the beginning of the hearing are: 1e Whether the 6,000 pipes were delivered or there was a fraud. ixi ·the ~,lleged del.tvery o . . ;.

2 2. Whether the 4 million .shil] in~ ,..as part payment for th0 pipes .. or !ul1 payment for the building materials., 3. What reliefs are the parties enti.tled too -In his written submis..sion 9 learned counsel !or the defendant, Mro Boaz, alleges the c.ontra.cta were illegal as the defendant is not a.uthorlzd, 'ft;o enter into a coni;ract of over 5()0p000/= without consult5.n[-£ the k.egi.straro With all due respect to the learned counsel~ this po.1.nt has neither "Qeen _:· pleaded nor testlfied upono .I't; ii:!i .improper to raise it onl.y at the final submissionso lf they entered into the contract without authority the defendants are still. liable to pay for it and not to enrich themselv12s by their own wrong-doing .. Now to the first issueo T.he plaintiff has testified that he delivered the flue pipeso He tend.ered delivery notes e.nd the transporters who actually transported them to the defenda= nt•s store., '£he defendant alleges the Delivery Notes do not bear the numbers of the vehiclea which delivered the gocdso This is alleged by DoWo1, to be one of the Regulations., But such regulations were never tendered in cou1-to The De.fenda.nt in the written Statement of Deience admits that the delivery notes were signed by the defe:n.dallt' a store-keeper't, But he alleges that it was fal.se entrieB at the behest of the plaintiffo But the auditor who allegedly foun.d that no pipes were-delive- red never came to testify o X-lor we.s his report tendered in court. The plain•ti:ff mat qu.ite probabl.y have <!.@livered the pipes and the defendan·t is, ato:re..-•k.r.:epe;r converted thm to other uses. This would ILl.ake th( oef (;W1.s.nt~ ia'i:ill v.icariously liable for their employee 1 s acti..ons., The advao"lce payment for the pipes, of Shs,,4 milliona, which has- been admitted by DoYio 1 is further evid.ene that the pi.peiS were delivered. So the first issue ls answered in the az:.fJsr.w.ati.ve on the first part and there is .no evidence of fraud on the allege_d delivery .. The second issue has a1ready been answeredo DoWe1 admit6 that the 4 million shillings was part payment for the pipes It can not be for the bull.ding r,ng1:rials wh.ich had not even been ordered for. The voucher for the 4,000:000/ ~bit Po5o clearly states that it was for LoPoUo Noo51981 which is the .P.O. for the pipes, Exhibit Po1o So the second issue is answered in he affinnative. As for the last iaaue it has be proved that plaintiff supplied those ;r.,.i.pes and buildL-ig materials.

,. 3 - He has been paid obly 4,000,000/= out of the 27,000,000/• for the pipes and nothing for the building materials. He is there- fore entitled to the due payment plus inten:st and.·coats. I therefore enter judgment for the plaintiff for:-

1. Shs.27,178,000/a principal amount. 2., Interest at 12 1/2 ~ per annum on the principal amount . from 1/6/96 till payment .in full.
2. Costa of this suit. L.B. MCHONE, JUOOE 24/6/99 Delivered in the presence •Of the Pl.ain:ti.f:f and Mr • on behalf of WEi'CU. . .. L.B. MCHOME, JUDGE 29/6/99 I~ C~In THAT THIS IS A TH.UE COPY OF THE ORIGINAL JUDGMENT. S,B, :M.WA, DISTRICT REGISTWut 5/8/99