KUDYA
J: The plaintiff issued summons out
of this court on 14 October 2009 claiming payment in the sum of US$8 769-44 for
coal delivered and supplied to the defendant at the defendant's special
instance and request, interest from the date of the service of summons to the
date of payment in full, collection commission and costs of suit. The action
was contested.
The
plaintiff averred in its particulars of claim that on 23 September 2009 it
delivered two loads and on 24 September 2009 one load of coal at the
defendant's premises. The first load weighed 31, 66 tonnes, the second weighed
32, 78 tonnes and the third weighed 30, 88 tonnes. The unit cost per tonne was
US$80-00; hence the claim of US$8 766-44.
In its plea filed on 10 November 2009 the defendant averred that the
plaintiff delivered the tonnage in question of substandard coal, which it
referred to as rubble. It was revealed in evidence that rubble is the residue
which remains after coal has been burnt. This coal was not in accordance with
the agreed sample of Hwange grade coal, was imperfect and did not meet the
intended industrial purpose. It invited the plaintiff to collect the rubble it
had delivered.
At
the pre-trial conference that was held on 27 May 2010 the issue that was
referred to trial was whether the product delivered by the plaintiff in
fulfillment of the contract was fit for the purposes for which it was meant.
The
plaintiff called the evidence of its director Pauline Muyambo and an assistant
to the driver who delivered the loads in question, Peter Mahachi. The defendant
relied on the testimony of its managing director Maurice Chinyani.
Pauline
Muyambo stated that the plaintiff company is a coal merchant. She solicited for
business from the defendant company through one of its managers called
Shalimar. At that time she had samples of the coal in a paper bag. A white
colleague of Shalimar indicated to her that the defendant had never used that
kind of coal before but were interested in testing its efficacy. The defendant
proceeded to order 30 tonnes for a trial run. She brought the 30 tonnes to the
defendant. At the defendant's premises, one of its boiler men took a bucket
full of the coal and threw the contents onto a conveyor belt which carried it
to the furnace. She was advised that the coal would be suitable if the intensity
of the fire in the furnace did not diminish. Having passed the test, the
defendant took delivery of the 30 tonnes and paid for it. It placed an order
for 300 tonnes. The plaintiff supplied 216 tonnes of that order and was paid
for 120 tonnes. The defendant did not pay for the remaining 95, 32 tonnes which
constituted the last deliveries made on 23 and 24 September 2009 and which are
the subject of the present claim. She sought payment from the defendant for
these deliveries and for two weeks she was assured that payment had been made
into the plaintiff's bank account. When no payment was forthcoming she sought
the assistance of the police in Chitungwiza to recover her money. She was
referred to the defendant company's chairman a Mr Somana who indicated that she
would not be paid for delivering rubbish, which would be consigned to the
rubbish heap. Her efforts to collect her rubbish were rebuffed.
She
set out the procedure used by the defendant in taking a delivery. The truck
carrying the coal parks at a reserved parking lot outside the defendant's
premises. The driver is referred by the guards manning the gates to Shalimar.
Shalimar issues the driver with a paper which he takes to the boiler man. The
boiler man proceeds to the truck with an empty bucket which he fills with the
coal from the truck. The boiler man takes the coal and returns after 30 to 40
minutes. He then returns with a paper and instructs the guards to let the truck
into the defendant's premises. The truck proceeds to the weigh bridge where its
loaded mass is taken. It is driven to the offloading bay where the coal is
offloaded by shovels by some of the defendant's employees. The vehicle returns
to the weigh bridge where its empty mass is recorded. Thereafter a weigh bridge
ticket containing the names of the defendant, plaintiff, the product delivered,
the loaded weight, empty weight and the weight of the coal, the name and
signature of the weighbridge clerk and
the name and signature of the driver are recorded. The truck leaves the
premises and the plaintiff is paid its dues the following day. The procedure
she outlined was confirmed by Peter Mahachi.
She
averred that this was the process that was followed when the three deliveries
in issue were made. She read from the three weighbridge tickets of the
deliveries in question though she did not produce them in evidence. The product
was identified as coal dwarf in each of the weigh bridge tickets.
Under
cross examination she stated that she knew the coal required by the defendant
was coal dwarf. She described it by reference to its size. She revealed that
120 tonnes were delivered on 7, 14, and 18 September 2009. She indicated the
tonnages that were delivered on each of these days. She stated that all the 216
tonnes were sourced from Gypsum in Masasa Harare which used to fire its boilers
using coal but had switched over to diesel generators. She was adamant that the
plaintiff supplied coal dwarf. She maintained that the fact that the defendant
allowed the deliveries into its premises after conducting its internal tests;
off loaded it using shovels and for two weeks promised the plaintiff that
payment had been made demonstrated that the correct type of coal had been
delivered. The plaintiff refused to collect the coal that the defendant claimed
was rubble after the plea was filed because it had no way of knowing whether
that was the coal it had delivered.
The
defendant called the evidence of its managing director Maurice Chinyani. He
came to know the plaintiff's director when she came with the police seeking
payment for the coal delivered by her company. Until that time he was not aware
of her claim. He acted on the information that he received from his general
manager in charge of operations.
He
took her to the grey heap of sand, stones and residue from a coal furnace that
was on his company's premises. He averred that the heap constituted the
deliveries that had been made by the plaintiff.
He
stated that the defendant extracts cooking oil from soya bean and cotton seed
and produces stock feed from the residue cake meal. The defendant uses 25
tonnes of either dwarf or peas coal a day and about 1 000 tonnes a month to
fire its boilers to the appropriate temperature required to extract edible
cooking oil and cake meal.
He
set out the defendant's standard operating procedure for accepting deliveries.
He stated that for coal the identity of the product is confirmed visually and
is then off loaded. Dwarf coal is consistently black and shiny and is not grey.
A certified boiler man receives the coal for use. He takes a bucket and pours
the coal onto a conveyor belt. He assesses its suitability and stops its use if
it does not meet the requisite standards. In the instance case the heap
consisted of grey sand, stones and ash as opposed to shiny black coal mined in
Hwange.
He
revealed in cross examination that the deliveries supplied by the plaintiff
were purchased by the defendant's general manager in charge of operations. He
was not aware of the procedure involving the sampling of coal using a bucket
that was highlighted by the plaintiff's witness. All he knew was that the guard
at the gate did a visual inspection that the product at the gate resembled coal
before receiving permission from the general manager operations to allow the
truck into the premises.
The
question that was referred to trial can only be determined on the basis of the
credibility of the witnesses called by each party and the probabilities of the
matter. The plaintiff demonstrated on a balance of probabilities that it
delivered dwarf coal to the defendant's premises. It was not disputed that the
weigh bridge tickets that were raised by the defendant described the product
that was delivered as dwarf coal. I found Patience Muyambo a credible witness.
Her version of how she concluded the contract for the delivery of 300 tonnes of
coal was not disputed. Her testimony on the procedure used by the defendant in
accepting a delivery of coal through the sampling test that is carried out by a
boiler man was not disputed. The vehicle is weighed and the identity of the
coal is recorded. The coal is offloaded by shovels. All this is done under the
supervision of the general manager operations assisted by the boiler man. The
procedure was confirmed by the assistant to the driver who delivered the three
truck loads of coal. That the bucket test is used by the boiler man was
confirmed by the plaintiff's managing director in his testimony. He made it
clear that the boiler man is the defendant's employee who certifies the
suitability of the coal used to fire the boilers. I am satisfied that Patience Muyambo was a
truthful witness.
Maurice
Chinyani was not the best witness whom the defendant could have called to
testify on what transpired when the three deliveries were made. By virtue of
his position, he was far removed from the actual action. The general manager in
charge of operations, the boiler man, the weigh bridge clerk and the employees
who offloaded the three loads of coal were best placed to testify on what
actually transpired. The evidence adduced by Patience Muyambo was at variance
with the standard operation manual that was adverted to by the defendant's
managing director. Indeed if visual sighting was the basis of identifying the
product as dwarf coal, the persons who identified it as such should have been
called by the defendant to describe what they saw. It was apparent from
Maurice's Chinyani's evidence that the heap he showed to Patience Muyambo could
not be mistaken for dwarf coal.
The
probabilities favour the plaintiff's version. The defendant consumes 25 tonnes
of coal per day. Its employees must have a general idea about the nature of the
coal it uses. It is unthinkable that they would have identified grey ash as
black and shiny dwarf coal or failed to notice on offloading that what was
purported to be coal was ash. The defendant did not explain why it did not
immediately notify the plaintiff that it had delivered a substandard product
when it made such a discovery but was content to mislead the plaintiff that
payment had been made. It did not explain why it raised the issue of the
standard of the product when the plaintiff with the help of the police,
insisted on payment. The impression created by the defendant's failure to
timeously inform the plaintiff of the unsuitability of its deliveries was that
the plaintiff delivered the correct product. It could very well have been
consumed by the defendant in the ordinary course of its production processes.
One cannot rule out that the plaintiff was then shown the by-product of that
industrial process as the coal it had delivered some two weeks before.
In
my view, the findings of credibility and the probabilities demonstrate that the
coal delivered by the plaintiff was dwarf coal and was suitable for its
intended purposes.
Mr
Tsaurayi, for the plaintiff, correctly
abandoned the claim for collection commission in view of the principle laid
down in Scotfin Ltd v Ngomahuru (Pvt) Ltd 1997 (2) ZLR 567
(H). He, however, prayed for costs on the higher scale on the grounds that the
plaintiff was forced to incur such costs in this matter as a result of the
intransigence of the defendant who mounted a non-existent defence. In my view,
the defendant must have known that it had no valid defence to the claim but
defended it for purposes of delay. It concocted the allegation of poor quality
solely to avoid its payment obligations, thereby unnecessarily putting the
plaintiff to expense in pursuing its claim. See Borrowdale Country Club v
Murandu 1987 (2) ZLR 77 (H) at 82D. Its
attitude, conduct and persistence in this matter amounted to an abuse of the
court process. It is proper that I express my displeasure of its conduct by
mulcting it with costs on the higher scale.
Accordingly,
it is ordered that:
The defendant shall pay to the plaintiff:
- The sum of US$8 769-44 together with interest at the
prescribed rate from the date of the service of summons to the date of
payment in full.
- Costs of suit
on the scale of legal practitioner and client.
Chinganga & Partners, plaintiff's legal practitioners
Sinyoro &
Partners, defendant's legal practitioners
