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.
b)
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
