Kuminga v Lime Industries Limited (Civil Cause 563 of 1985) [1987] MWHC 17 (21 August 1987)

IN THE HIGH COURT OF MALANI, BLANTYRE PRINCIPAT REGISTRY CIVIT, CAUSE NO.563 OF 1985 BETWEEN s MoT. KUMINGA ...cccccccccscccscccceces PLAINTIFFS AND LIME INDUSTRIES LIMITED ..2c22eeeceeee DEFENDANT Coram: MAKUTA, C.d. Fachi, Counsel for the Plaintiff Mhoni, Counsel for the Defendant Mkumbira, Official Interpreter Phiri, Court Reporter JUDGMENT By Writ of Swamons dated 9th October 1985, the Plaintiff claims the sum of K3,953.15 being balance of price of goods sold and delivered to the defendant and money paid for the purchase of a motor vehicle. ™he historv of the matter is that in August 1975 the plaintiff and his wife, Mrs. Tereza Jackson Kuwainga on the one hand, and Boniface Meia Chilembwe and his wife, Mrs. Ellen Mejia Chilembwe, on the other hand, entered into an oral partnership agreement to form a lime manufacturing business which was called LIME SUPPLY COMPANY and was registered with the Registrar of Business Names, under certificate No.3610 dated 10th August 1975. Ft was part of the agreement that the plaintiff and Mr. Meja Chilembwe should both put into the partnership the sum of K10,000.00 each. But the plaintiff failed to produce the said sun. He, however, alleqes that he managed to produce K115.00 which he paid to Mr. Meja Chileabwe. The plaintiff also al tages that he paid K5.00 on behalf of Mx. Padenga who had “pressed some interest to become a partner. Mr. Bonitace Meja Chilembwe denies receiving the two amounts of K115.00 and K5.90 respectively. he partnership did not work out successfully. The reasons for the failure of the partnership are not clear but it would appear that it was due to non-production of the agreed sums. In September 1978 time Industries Gimited, that is the Defendant Companv, was incorporated under the Companies Act, 1998 and 1913. Mr. Soloti Golden Chilembwe would seem to be not only the Managing Director but also the Chairman of it. For purposes of this action I will refer to him as Managing Director, “The other Directors are Mrs. Ellen Meja Chilenbwe and their son. It would appear the Managing Director has other names - Boniface Mejia Chilembwe and Soloti Golden Meja. Boniface ileja Chilembwe is the name he used in 1975 when the partnership, time Supply Company, was formed and registered. It would be fair to mention that he is popularly known by the name of Meja. He did try to explain that Boniface is the name of his son who is studving at Chancellor Collece. However, it is not the son who was a party to the partnership. There seems to be a deliberate attempt to confuse names although it is not clear for what reasons. When the writ was issued in October 1985 Mr. Soloti Golden Meja was the defendant. An application to substitute the party was made in court by the plaintiff on 16th June 1987. Thus the defendant in this action now is Lime Tndustries Limited. The Plaintiff, who has been a lime maker since 1°54, alleges that in Aucust 1980 he made an agreement with the defendant to huv the defendant's motor vehicle registration numher BC 8240 for K3,009.00. He did not have money but it was agreed between the parties that he was going to deliver lime to that value. He did that and a document was issued to the plaintiff. The document was produced as Exhibit P3. It was signed by Mr. Samuel, a nephew of Mr. Meja Chilembwe, on behalf of the defendant. On the document it was written: “Money for buying vehicle, Bedford BC 8240 from Lime Industries Limited". The document shows that a total of 1,153 baaqs of lime worth K3,053.75 were delivered. Tt also shows that the lime is from Mr. Kuminga of P. O. Box 6, I:irangwe. The plaintiff stated that the vehicle has not, up to now, been delivered to him despite repeated requests. The Plaintiff further states that there was another agreement whereby he was to deliver bags of lime to be paid for in instalments by the defendant. According to the Plaintiff the transactions under this agreement are reflected in Exhibit P5. This exhibit shows that 758 badqs of Lime worth K2,084.50 were celivered. Cash pavments and other deductions, like water charges, were saade and there is a balance of 858 still to be naid to the Plaintiff. The information shown on this exhibit is also shown at page 49 of the official Time Industries book. “his book was produced in court bv the Managing Director. There was vet another delivery. It was of 15 baas worth K41.40. his is shown in Exhibit P6. Tt was signed by Mr. S.&. Miwanda. Payment of this has not been made. Having failed to recover the amounts the Plaintiff alleges to have written a letter of demand, produced as Exhibit P7. It is written in Chichewa and it is dated 18th March 1981. It is copied to the following: Police, Southern Division: The Officer-in-Charge, Police, Chileka; Minister of Justice, Blantyre and the Regional Minister, Box 733, Blantyre. The letter specifically mentions the sum of %3,053.75 and other sums. It solicits Government support to recover the money. “he Plaintiff stated that as a result of this letter he was summoned to Police, Southern Division. The Managing Director was also summaned. After some fruitless and lengthy diseussian at the Palice the Plaintiff was advised to consider instituting legal proceedings. The Managing Director denied to have ever received the letter. He also denied to have been summoned to the Police, Southern Division. He, however, admitted that in 1979 the Company bought a Bedford truck BC 8240 but denied that the company ever intended to sell the vehicle to any~-one, let alone the Plaintiff. The Company denies to have bought lime worth %3,053.75 fron the plaintiff with the intention mentioned in Exhibit P3. It is, however, observed that this exhibit was signed hy Charles Samuel who, as already mentioned above, is a nephew of the Managing Director and he used to work, or to put it in the words of the Managing Director he used "to help” at the Lime Industries Limited. Whether he used "to help" or "to work", Charles Samuel described himself as foreman of the Industry. He therefore signed on behalf of lime Industries Limited. On the available evidence I find that the Plaintiff in August 1980, delivered lime worth K3,053.75 to Lime Industries Tiimited. This sum is still owing to him and the vehicle is still with the defendant. It has been argued by Mr. Mhoni on behalf of the Defendant that this particular claim is statute barred. With respect I do not agree. ‘The lime was delivered in August 1980 and this action was filed in October 1985. It is based on the contract and it therefore commenced before the six-year period elapsed: see I.imitation Act, Cap. 6:02. It was also argued on behalf of the Defendant that a Bedford truck cannot sell at only K3,000.00, [It was said that the amount is too small. I would observe that the figure mav look small but if the parties agreed on it, the contract is binding. It is what the parties intended that matters. Io now turn to the claim of ¥%858. This amount, as mentioned above, is reflected in Exhibit P5. It shows that 758 bags of lime worth K2,084.50 were delivered. Cash payments and other deductions were made and there is still a balance of K858 owing. The information shown on this exhibit is also shown on page 49 of the official Lime Industries book, Exhibit Dl. The only difference between the two is that a Mr. §.%. Nkwanda, an emplovee of the defendant, signed Exhibit P5 as KAPITAWO for Lime Industries imited. According to Mrs. Bllen Meja Chilembwe Exhibit D1 was written by the Managing Director. It should be pointed out that Mrs. Ellen Meja Chilenbwe told the court that she controls the finances of the company; she therefore knows what she is talking about. ‘The Defendant, however, denied owing this sum. But no evidence was given to show how the balance was cleared. It would therefore appear that the liabilitv is being denied despite the clear evidence to the contrary. In my judgment the Plaintif£ is entitled to this monev. The last claim is a sum of K41.40. This came about as a result of delivery of 15 bags of lime at K2.75 each. This is shown in Exhibit P46 which, again, is signed by S.%. Nkwanda who described himself as H. XAPITANO, presumably meaning Head Kapitawo. Again the Defendant denied owing this amount saying that the 15 bags were not received. It is not being disputed that S. K. Nkwanda was employed by T.ime Industries limited at the material time. Again no evidence has been adduced to show how this sum was paid. In my judgment it is still owing. On the counter-claim, the Defendant alleges that K1,107.00 is a sum paid to the plaintiff in advance, to deliver lime but the lime has not been delivered. According to the allecation the money was lent to the plaintiff in order to assist him to make lime which was to he sold to the defendant. In effect it is saying that the plaintiff had no working capital with which to make the lime. ‘The sum is made up of four amounts, viz: %400.00 paid to the plaintiff on 12th June, 1980; K300.00 paid to the plaintiff on 24th June, 1980; K300.90 paid to him on 10th August, 1980 and K107.00 paid to him on 19th August, 1980. These amounts are shown on Exhibits P9, P10, Pll and P12. The Plaintiff denies the allegation and states that he @id, in fact, make the lime. ‘The defendant wanted it and the Plaintiff demanded cash for it because at the material time the Defendant was already indebted to hin. Ye was therefore paid cash for the lime. He further stated that if he had not delivered the lime on 12th June 1989 the defendant, according to the plaintiff's knowledge, would not have paid him the subsequent sums of K300.00 on 24th June, 1980; K300.00 on 19th August, 1980 and K107.00 on 19th August, 1980. 7 am inclined to agree with this because I do not see how further sus could be advanced to the plaintiff before previous consicnments were delivered. It does not make business sense at all. ™here was another point. The Managing Director alleged@ that Exhibits P9, P10, Pll and P12 were all written by the plaintiff. Mrs. Ellen Meja Chilembwe contradicted this in very clear terms. She told the court that she wrote then herself and the plaintiff merely signed. It is difficult to appreciate what Mr. Meta Chilembhwe wanted to convey to the court when he made this allegation. ‘he evidence on the counter-clain is, in my judgment, not tenable and I dismiss it. Ph T woulda like to say that FT found the plainciff a straicht-forvard witness. Se gave his evidence without exaggeration. He impressed me as a witness of truth. “he defendant's Managing Director, on the other hand, gave the impression that he could resort to brovw-beatinc. He was also ready to enbellish his story with sone exaggeration, For example he told the court that he never paid his creditors by instalments. fn other words he paid then imuediately. Yet Exhibit Dl shows that there are a nunber of creditors - Mr. Malimba, for example, at page 23, Mr. Zintambila at page 27 and Mr. Katoleza at page 33, just to mention a few, who were paid months after delivery of their lime. Finally for the sake of clarity f find that the Plaintif£ succeeds in his claim against the defendant. he counter-claina is disiissed. “he Plaintiff gets costs of this action. PROMOUNCED in open Court this 21st day of August, 1987 at Blantyre. Hi} / A ale He, Mekuta TYSMECE