Kaliati v Mogra (Civil Cause 265 of 1985) [1987] MWHC 9 (22 July 1987)

. i f \ é = “a Ls, af @&, fk Ce St ~ IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 265 OF 1985 BETWEEN: Q. F, KALIATI (MALE) ............. PLAINTIFF - AND - I. A. MOGRA (MALE) .........2.000- DEFENDANT Caram: BANDA, J. Chizumila of Counsel for the Plaintiff Kondowe of Counsel for the Defendant Manda, Court Reporter Namvenya, Official Interpreter ee ee ee eee Ne ee ine ee me et eee cong nee eee ae ee te cane ee cee nee eee ee wet nie tome ee Om te nee ot ets we JUDGMENT The plaintiff's claim against the defendant is for the sum of K4,985.00 being the value of a maize mill allegedly delivered to the defendant for repairs, The plaintiff is a businessman who has a clothing factory as well as grinding maize mills. It would appear that at the material time the plaintiff had eight grinding milis. They were all bought from Brown and Clappertan. The defendant is an Assistant Engineer employed by I. Canfor- Zi in Thyolo. It would appear, on the evidence before me, that the defendant was repairing the plaintiff's maize mills and this started as far back as 1978. The repairs which the defendant carried out on the plaintiff's maize mills involved pulleys, bearings and the alignment of the mills. The plaintiff stated that he first knew the defe- ndant four years ago and that he knew him through a friend called Macheso, who was also working at I. Conforzi. Macheso is apparently an electrician by profession. It was the plaintiff's evidence that Macheso had been going to his house to help on electrical problems. The plaintiff stated that he remembers a certain day when Macheso ee orget the defendant with him. Macheso introduced the defendant as a mechanic at Conforzi. According to the plaintiff's evidence, the defendant was introduced as an experienced mechanic, who could help him with his maize mills. From that point the plaintiff said the defendant began servi- cing his mills. It was the plaintiff's evidence that he found a maize mill engine which he felt was not pulling efficiently. It was the plaintiff's evidence that when Mogra came he found a maize mill which was not working. The defendant asked why the mill was not working and the plaintiff stated that it was not working at full speed. This was a Brown & Clapperton LB4 mill. It was the plaintiff's evi- dence that the defendant said that he could fix the mill by extending it so that it could use 24 beaters instead of 12. The plaintiff said that he agreed to this proposal and that the defendant took the mill from the plaintiff's house. He could not remember the exact date but he felt it was between 1983 and 1984. It was on a Sunday. It was the plaintiff's evidence that the defendant dismantled the engine and he was assisted in loading into the defendant's Volvo Car by the plaintiff's boys. The plaintiff called other witnesses who testified to the fact that they saw the defendant take away the plaintiff's maize mill for repairs. The dofendant, while not denying that the plaintiff's maize mill was taken away, he has contended that it was the plaintiff himself who took the maize mill to a Mr, Manondo, who at the time the mill was taken, was still working for Brown and Clapperton. The defendant admitted that it was he w2> introduced the plaintiff to Manondo. Indeed, there is further evidence on record to show that the Gefendant had at one time suggested to the plaintiff to come to Limbe so that they could go to Manondo's place, where the mill was, but for some reason the appointment to meet in Limbe did not take place because the defendant stated that he had a breakdown at the factory. There can be no doubt, therefore, that the plaintiff's maize mill was taken away for repairs and the issue I have to decide is whether it was the defendant who took it away or it was the plaintiff himself who took the maize mill to Manondo through the good offices of the defendant. It was the evidence of Bakuwa that he remembers the defendant coming to tne plaintiff's place and took away an LB4 mill in his blue Volvo Car. He stated that he was present and that the Cefendant took away the mill so that he could add more beaters to it. It was the evidence of this witness that it was he who loaded the dismantled pieces into the boot of the defendant's vehicle. The only evidence which tend to suggest that it was the plaintiff himself who took the maize mill to Manondo comes from the defendant and that evidence comes through an oblique suggestion when the defendant states that tne plaintiff knows where the maize mill is. He does not categorically state that it was the plaintiff who tock the maize mill to Manondo. The dsfendant called -Uka Limanje as his witness. The effect of this "“itness's evidence was to state that the cefendant was taking spare parts from an LB4 mill to repair other milis and that this mill was a total scrap. There was also the evidence of Macheso. This witness states that he was present when the plaintiff and the defendant were arguing over the maize mill. It was the evidence of Macheso that during that argument the defendant had stated that he was prepared to take the pla- intiff to Limbe to show him where his maize mill was. BY oni Sees we I have carefully reviewed the evidence before me and I am satisfied and I find that it was the defendant who took away the plaintiff's maize mill so that he could extend it to enable it to carry 24 beaters. That maize mill has not up to now been repaired, There is some dispute about the value of an LB4 maize mill at the time it was taken away. The plaintiff has produced Exhibit 1, which purports to be a receipt for the purchase of a maize mill on 3lst August, 1977 valued K4, 985. It is agreed that at the time the maize mill was being taken away by the defendant it was not operating as the plaintiff told the defendant that he was not operating it because it was not working efficiently. If Exhibit 1 is a genuine receipt for the sale to the plaintiff, it would mean that at the time it was being removed it was six or seven years old after the plaintiff had acquired it. My only comment on the alleged receipt is that even after almost ten years it is still in a very good condition. Mr. Kaliati, the plaintiff, must have kept that receipt extremely carefully. Quite frankly I have my doubts whether Exhibit 1 is a genuine receipt on which the plaintiff bought his maize mill from Mr. Muropo. It was curious to note that a person who issued that receipt. and whatever his name was, is certainly not Mr. Muropo. Mr. Muropo was not called as witness to testify to that transaction. The defendant's evidence on the value of an LB4 maize mill at the material time was between K3,000 and K3,500. The truth of the matter, in my judgment, must be between K3,000 and K4,000, remembering that the maize mill must have been a second-hand one as the plain- tiff had bought it from another businessman by the name of Mr. Muropo and the plaintiff had used it for a period of six to seven years. Consequently, I find that the value of this particular maize mill at the material time could not have been more than K3,500. Therefore, having found that it was the defendant who took away the maize mill which was not repaired or returned to the plaintiff, I find that the plaintiff has, on balance of probabilities, substantiated his claim against the defendant. There will be, therefore, judgment for the plaintiff in the sum of K3,500 and costs of these proceedings. PRONOUNCED in open Court this 22nd aay of July, 1987, at Blantyre. ; R. d. Banda’ JUDGE