Kannonyele J: C
The plaintiff entered into a written sale agreement with the defendant for the purchase of a hut at an agreed price of Shs 40,000/=. He, the plaintiff, paid the defendant Shs 20,000/= advance towards the agreed price of Shs 40,000/=. No time was fixed for final payment of the balance. Also no date is indicated in the sale agreement as to when the D same was made. In the written statement of defence, however, the defendant said the sale was in 1991 and her evidence at the trial, she said the sale was in 1990.
The contractual relations were strained following the plaintiff's delay in paying the defendant the balance of Shs 20,000/= as had been agreed between them. Despite E demands through agents, the plaintiff had not yet paid the balance by early 1993. The defendant herself approached the plaintiff to press her demands for the balance payment in the said early 1993. The plaintiff offered Shs 15,000/= which the defendant F refused insisting for full payment of the balance. Plaintiff would not pay it whereupon the defendant concedes (in her evidence at the trial) to have remarked that because of his delay, the plaintiff would now have to pay Shs 10,000/= more over and above the agreed sum of Shs 20,000/=. The plaintiff had not yet paid the amount by early 1993. The G defendant complained to the `Shekha' at Mwanakwerekwe. It was there revealed that the defendant had now decided to rescind the contract upon refund of the plaintiff's Shs 20,000/= advance payment. Plaintiff refused to receive the refunded money insisting for full performance of the contract. She instituted the case in April 1994. H
The defendant won the suit before the court of first instance where it was held that she was entitled to rescind the contract under the principle of unreasonable delay. She was required to refund the Shs 20,000/= earlier advanced to her. This judgment of the I primary court was reversed on appeal by the plaintiff to the district court. The latter held that the plaintiff was entitled to claim for perfor-
mance on account of the renewed terms in early 1993-a reference to the Shs 10,000/= A additional demand at that juncture (supra). On a further appeal to the resident magistrate's court by the defendant, however, judgment of the primary court was restored. Still aggrieved, the plaintiff is now appealing to this court. The plaintiff's seven grounds of appeal may be summarised into three namely: B
1. That the resident magistrate erred for not taking into account the fact that the defendant had earlier refused Shs 15,000/= as part payment of the balance Shs 20,000/=.
C 2. That the resident magistrate erred in failing to take into account the fact that for two years the defendant was away to the rural areas without prior arrangements for payment through an agent hand, inapplicability of the principle of unreasonable delay, and
D 3. That it was in fact the defendant who is in fact guilty for breach of the contract.
There is no dispute as to formation of a contract between the parties in this case. Rather, it is what transcends after the formation of such contract. And precisely it is a E question whether there was frustrating delay by the guilty party herein to perform his part of the bargain. On my part, I subscribe to the view held by the trial court and the second appellate court that the delay of over two years for the payment of Shs 20,000/= only under the present economy was unreasonably frustrating and, therefore, that the F defendant was entitled to rescind the contract under the circumstances. After a delay of over two years, I think the defendant was entitled to refuse receipt of Shs 15,000/= in early 1993 which amount was less than the agreed sum. And when the plaintiff was still G not able to pay the contractual balance even a year later (in early 1994), I think the defendant was entitled to rescind the contract under the circumstances. Defendant's alleged absence to the rural areas could not have been a sufficient licence to non-payment or delayed payment where the defendant was sending her agent to receive H the amount due. As a defensive gesture, the plaintiff should have paid the claimed amount to the agent and then it would have been up to the defendant and her agent to sort their affairs assuming that the agent were to misappropriate the amount.
Regard is being had of the fact that in a contract for the sale of land or immovable I property as the case was here it would normally be presumed that time was not the essence of the contract. Indeed
this is the more likely in this case where no reference at all was given to time, neither A time for entering into the agreement nor that intended for final performance. However, as already pointed out, a delay of over two years for the payment of Shs 20,000/= only is considered as unreasonably frustrating delay under the present economic situations B where even small children talk of business in terms of millions of shillings. True, the guilty party must not merely be late but be unreasonably so (British & Commonwealth Holdings Plc v Quadrex Holdings Inc (1)). I accede to the view held by the trial court and the resident magistrate's court that the plaintiff was unreasonably late here in completing C his part of the bargain and the defendant was entitled to rescission of the contract after so much of the delay. Equity will not relieve a party the consequences of his own neglect (Caltex (India) Ltd v Bhaghwan Devi Marodia (2)).
I am satisfied that despite the practical problem which normally arises where time is not D originally intended to be the essence of the contract and yet one party becomes guilty of delay, this is a suitable case in which to apply the principle in Universal Cargo Carriers Corp v Citati (3) that where time is not of the essence, late performance will be ground for termination of the contract where it (ie the time) causes frustrating delay. E This, I think, should suffice to dispose of all the grounds of appeal lodged in this case.
This appeal is therefore dismissed in toto.
Appellant to have his costs in this court and in the courts below. F