Simbasana v. Timamunungu (PC) Civ. App. 114-M-70; 4/6/71; El-Kindy Ag. J.

Simbasana v. Timamunungu (PC) Civ. App. 114-M-70; 4/6/71; El-Kindy Ag. J.

            The appellant alleged that he agreed to buy cassava from the respondent at Shs. 12/- per bag. He then paid a deposit of Shs. 100/- and left the respondent filling up the bags which he (the appellant) had brought with the cassava. On arrival at the respondent’s house he found that the respondent had already sold the cassava to a third party. The respondent alleged that appellant was in breach of contract because he promised to collect the cassava in two weeks but turned up after two and half weeks. There was no evidence that time was of the essence of the contract or that the parties had agreed on the period of two weeks. The primary court found for the appellant but the district court reversed on the ground that time was of the essence.

                        Held: (1) “As to time, the assessors and the trial court therefore were in no doubt that time was of no essence, as they said so clearly and their finding is therefore a finding of fact which cannot b easily set aside. Besides that the time of two weeks was not made a term of contract, as it was mentioned when the appellant was leaving to fetch a vehicle. The terms of contract were settled already. It this was a term, it would have been stated at the time of setting the price. The evidence clearly did not justify the decision of the appellate magistrate on this. On preponderance of evidence, the trial court came to the correct conclusion that the respondent was the one who was in breach of contract, and as such he could not avoid the consequence which followed i. e. financial loss. In the result, if I find the decision of the primary court was sound and fully backed by evidence before it.” (2) Appeal allowed.