OBRIDGE ENTERPRISES (PVT) LTD
PULWICK ENTERPRISES (PVT) LTD
HIGH COURT OF ZIMBABWE
HARARE, 28 July and 6 September 2010
R. Nyapadi, for the plaintiff
T. D. Muskwe,for the defendant
KUDYA J: The plaintiff company issued summons against the defendant company on 25 November 2009. It claimed the payment of US$ 2 957.10 being the cost of the outstanding bags of mealie meal delivered to the defendant; interest at the prescribe rate from the date of the issue of summons to the date of payment in full and costs at the legal practitioner and client scale. The defendant contested the matter.
It was common cause that on 17 March 2009 the plaintiff delivered 3 000 bags of mealie meal to the defendant at the cost of US$4.10 a bag. At the commencement of trial, the plaintiff conceded that 516 bags were sold at US$4.10 a bag while the balance of 2 484 bags was to be sold at US$3.50 per bag.
In paragraph 5 of its declaration, the plaintiff averred that 1 689 bags were returned by the defendant unsold leaving 795 bags in the custody of the defendant. At trial, the plaintiff reduced its claim to US$ 2 782.50 being the cost of the unsold 795 bags.
In response to the averment made by the plaintiff in paragraph 5 of its declaration, the defendant pleaded and amplified in its further particulars that 645 bags were part of the consignment 2 484 bags which had gone bad that the defendant returned to the plaintiff’s factory in Ruwa. The transporter charged the defendant US$600.00 for the delivery of the returned bags. The defendant owed the plaintiff the sum equivalent to the cost of 150 bags, which after set off against the transporter’s cost left the plaintif indebted to it in the sum of US$58.50. It denied owing the plaintiff any amount.
At the pre-trial conference that was held on 30 June 2010, the single issue that was referred to trial was whether or not the defendant returned 2 484 bags of mealie meal to the plaintiff. At the commencement of trial I ruled that the defendant had the duty to begin as the evidentiary onus to show that it returned 2 484 bags of mealie meal to the plaintiff lay on it. In the result, the defendant called the evidence its manager Eddington Zhou, based at Zengeza 5 Spar, the supermarket which received the consignment of 3 000 bags from the plaintiff. He confirmed that the defendant received 3 000 bags of mealie meal from the plaintiff. He further confirmed that the defendant sold 516 of those bags leaving a balance of 2 484 bags. He further stated that the defendant returned 1 689 bags of the original consignment to the plaintiff. He produced exhibit 2, the delivery note which showed that the defendant delivered 1 689 bags of mealie meal to the plaintiff on 12 May 2009. The plaintiff signed on the delivery note acknowledging receipt of these bags. He averred that the 1 689 bags were delivered to the plaintif by Marongwe Transport at the cost of US$600.00. He averred that the defendant was authorised to return the bags by the plaintiff’s marketing manager, one Tafadzwa. He averred that of the remaining 795 bags, Tafadzwa authorized the defendant to destroy 645 bags that had gone bad. The defendant sold the remaining 150 bags which it set off against the cost of the return of 1 689 bags. He produced exhibit 1, a credit note raised by the defendant on 22 July 2009 which indicated that Tafadzwa had authorised it to dispose of 645 bags of mealie meal.
Under cross examination he accepted that the further particulars delivered by the defendant that it had delivered 2 484 bags told a lie as only 1 689 bags were returned. He admitted that exhibit 2 was not dispatched to the plaintiff nor was Tafadzwa ever requested to append his signature on it to confirm the alleged authorization for the disposal of 645 bags. He failed to produce documentary proof of the charges levied against the defendant by Marongwe Transport. He could not explain why the defendant did not submit an invoice for the transport charges to the plaintiff. He failed to explain why in its further particulars the defendant did not indicate Tafadzwa as the employee of the plaintiff who authorised the disposal of the 645 bags. He was clearly confused on his sequence of events in regards to what transpired first between the disposal of the 645 bags and the return of 1 689 bags.
In my view, Eddington was a poor witness. His testimony on the fate of the 795 bags was not supported by any credible documentary evidence. Neither did the defendant call the evidence of Tafadzwa to confirm the alleged central part played by him in regards to the 645 bags despite having been allowed the indulgence of a postponement firstly to 30 July and secondly to 6 September 2010 for the purpose.
The evidence proffered by the defendant in court was at variance with what was contained in its pleadings. The plaintiff opened and shut its case without calling evidence in the face of the admissions made by the defendant and the anomalies in the defendant’s case. It is apparent to me that the question referred for determination at the pre-trial conference is answered in the plaintiff’s favour. The answer to that question is that the defendant returned 1 689 bags of mealie meal to the plaintiff and not 2 484 bags as it averred in its pleadings. It failed to account for the fate of the 795 bags that remained in its custody. It admitted that it sold 150 of those bags and failed to demonstrate the fate of 645 bags. It did not remit the cost of the 795 bags to the plaintiff. In my view the plaintiff has demonstrated on a balance of probabilities that it is owed by the defendant the value of 795 bags of mealie meal.
I will grant judgment in favour of the plaintiff in the sum of US$2 782.50.
The plaintiff asked for interest and costs on a legal practitioner and client scale. As far back as 5 November 2009, the plaintiff placed the defendant in mora. It will be entitled to interest in terms of the summons. The defendant was aware of the evidence it had at its disposal before the trial commenced. It was aware that it had no defence, hence its failure to file discovery papers. It unnecessarily put the plaintiff to expense to claim what it was aware it owed. In my view this is a proper case to mulct the defendant with costs on the higher scale.
Accordingly, it is ordered that:
The defendant shall pay to the plaintiff:
a) The sum of US$ 2 782.50 with interest at the prescribed rate from 25 November 2009 to the date of full payment.
Costs of suit at the scale of legal practitioner and client.
Muza and Nyapadi, plaintiff’s legal practitioners
Muskwe and Associates,defendant’s legal practitioners