19890526 TZHC Dar es Salaam

IN TIIE IITGII COURT OF Ti1.l'IZ1i. N'IA . .. ,. ,· CIVIL nPPEAL NO. 39 OF 1900 Ilhulid MfaU11e Kwangwaju • • •. •• • ••• • • •. • • • • • • •• AJ)poTlant Versus ,f ~· • .' MohD.med Yu.sufu Uso • o ••• • • • • • • • • • • • • • • o ••• ;, • ".• Ros pendent JUDGEMENT MNZAV,'ill J oK• rn· this case tho parties are disputine over a house si t-u.ated on· Plot No.79 Block C.3 · along Lueogo street in Morogoro Township. Th0re was no dispute that the said house i.s registered in the nano of tho appellant. Equally it was not in dispute -th,1,t . by a written .~reeraent dated 2/D/70 :the appellant decided to sell the house to the respondent for shs.,115,000/=• The respondent paicl cash shs. 75,000/= as p2.rt-pa.yne:a.t f'or the purchase of. tho house ~d, according to tho ngreeracnt, ho was to pay the balance of shs.40,000/ :fby instal□ont over a period 0 of one year. Soon ~t'terr: pcyoentL,the raonoy tho respondent was allowed to occupy 0110 of tho rooms in tho house. IIowovcr there a.rose a misu..~dorstancling between the parti'os o.nd tllo appellant decided to rescind the contra.ct ·D.Ud demru1decl tl12,t tho :respondent gives him vacclllt possession of tho one rooJ:1 ho W.?..S occupyinc. The respondent :resisted and the appcllwt filed a suit in the Rf.I's court seeking for responcle11t•s eviction fror:1 tho pro1:1ises. After hearing evicloncc from both sides the learned trid L1c,gistr2.to car:1e to tho conclusion that tho appollclllt. had no rie;ht to rescind the controct 013 tho respondent was in no way in broach of the contract. The lower court o.ccordi.ngly dismissed tho appollr.mt 1 s prayer that tl10 a:~:,-i:7--,,,.r'\'f'.l'G be evicted fron the suit proLiises. ••••/2 2 - Disso::tisfied .i:,i tho dooision · of the lower court the appellant has. appealed to this Court~ Befo'rc ~his oou;rt tho· a.ppcliant who app~aroci in person argued tliat ho dooidod to resoirid the contract beoause the ~~pondeni; faiii:;id tci pcy tho whole ·- ' pu:rohase price on the due daterigreed in the rigreet1ent. · It 'i-icis his argument that according to tho Agreenent tho.fospondent wa.s :required to pa.y all the puroha.so prioe on 2/0/80 but that, he failed and instead paid in July 1908. The xespondent on tho other hand n.rgued that before the due date - 2/8/80 was reached the appellant filal a. case in court seeking respondent's eviction from the suit p:remisea. The :respondent conceded that he paid the "'balance of the purchase prio~ in July 1988. Ile however argued th2.t it was the appellant who 'WM :responsible for his (:respondent ts) failure to pcy the whole purohase price as he hnd taken an appeal. The n.g:i:-eemcnt entered. between the parties s~ys inter alias -"Nimepolroa shs.75,000/= - bado shs.40,000/r.: a.tamaliza deni hilo baad.a. ya mwaka mmoj2. -:- 2/8/00. Ilivyo nyu.mba hi.yo i takabidhim:-. ndugu Mohamed Yusufu Ivlohamcd baa.da y[.!. deni kwisb.a" • It would therefore appco.r that the due date -:- 2/8/00 was of the essence of the contmct. A provision in a contra.ct is ·said to be of the essence of the contract when oomplia.noe with it was lmown to both pn.rties at ·the time of entering in-'co the contract. It was not in dispute that; both the appclln.nt and the :respondent were fully a.waro that mider tho contract the balance of shs.40,000/= was to be po.id to the vendor, tho appellant, by 2/8/80. The :respondent did not po.y the balnJ:1cc of the purcl1D,Se price on 2/fJ/O(? 2.S stipulated in the agreement. Ile paid the balo.nce of pul"Chaso prioe in July 19813 a.bout seven years af'ter the due date. Ile has n.ttributed his fm.lu:ro to pa;y the ba.ln.noe on 2/8/00 to tho fact that - the appellant h.~d filed n. on,so a,g?.inst him. Tb.is oxplMa.tion is clearly of no consequence. As time was of tho essence of the ;_ agreement his failure to pay the balance of the pu.:rohase price on 2/8/89 entitled tho appella.nt to rescind the contract. That this is the law (where time is of the essoncq of th8 contract) is evident from the decision of this Court in. ABDULLAil TAMIM V SAIDI ••••/3 Tho a.ppea.1 is uphclc:l.,. Tho n.ppellant .to return n.11 tho . money to the rosponclcnt which he hnd rGccijyr-d D,S purch~e price of- tho house,, : ( If the responden-t is still occupyine o. roon in• tho disputed. 110u;e __ ho is given three raonths to vn.on.to tl1e preuiscs fron tou.ey 1 s \u.ate., 11ho o.,ppellcnt to have his· oosts • .....