Chishimba v Koczka (SCZ 8 94 of 1986) [1988] ZMSC 61 (13 June 1988)

IN THE SUPREME COURT FDR ZAMBIA HDLDBN AT NDBLA (Civil Jurisdiction) SCZ/8/94/86 Appeal No. 30/1937 KAELA HAMINGTON CHISHIMBA Appellant -vs- SILYVIAzKUCZKA Respondent • CORAM: Ngulube, D. C. J., Bweupe, and Challa, AJJ. S. Bth March and 13th June, 1968 For the Appellant : Mr. M. W. Forrest Esq. of Forrest Price & Cd. For the Respondent : Mr. R. Muscoda, Esq. of Ezugah, Musonda & Co. JUDGMENT Bweupe, AJ. S. delivered judgment of the court. On 6th March, 1988 while sitting at Ndola, we dismissed the appeal against the decision of a High Court Judge who refused to make an order for specific performance of the contract for the sale of a plot number 58 Itimpl, Kitwe. We dismissed the appeal and allowed costs in favour of th a. Respondent both in the court below and;here. We indicated then that*1 we would give our reasons later. These reasons we now give. ... The brief'facts of this case were that negotiations between the parties culminated on 1st December, 1961*into their agreeing to enter into a Law Association of Zambia Standard Contract of sale for the purchase, by the Appellant from the Respondent, of Plot No. 58 Itimpi in Kitwe for the sum of K23,00D. The condi- tiona of sale contemplated that the parties would exchange contracts; that the State Consent would be obtained within 16 weeks; that completion would take place within 30 days of the . receipt of States Consent. In pursuance of the Special Conditions the States Consent was obtained on the 24th'November, 1981. 2/... Clause □ 2 - . .j\............. . . • t ClcuseS of the Special Conditions stipulated that vacant possessio will be given on payment of the whole of the purchase price or such later date as the parties hereto shall'arrange.£ The parties'“ finally arranged; completion;.date as 25th^September, 1902. It is evident from document No. 22 that the Appellant:had^paid to the Respondent K14,*i90. D0 of the purchase moneys, ;;On or. before 25th September, 1982 the Appellant, failed tolcompletp the Contract and the Respondent thereby rescinded^the Contract^ :Appellant then sued for an Order of specific performance.and .damages; for breach of Contract. ' -b Sp/oin? aWmon' which fixed the ti?rts of «■ wnletion to ■ After careful.analysis of t,he„entire evidence before him the learned trial judge found thatrthe. Appellant,was, npt entitled to a decree of specific performance, because^n the facts, as established, the Appellant was. in total breach of the agreement for failure to tender the full purchase price as stipulated in • the Standard Law Association Contract. One major issue raised in ' i • ~ to i? ■ ? *,. ' r'. ■ w • • * * 1 b? ** •• •’ ■ ’ • n*? • the appeal is whether the learned trial judge was or was not wrong .• ;.h:- fn this in refusing to decree specific performance. ' u The evidence in court, especially^the^correspondence, exhi- ( rmq expretv'ed ties/ wish «o it suen • , bited in court and clearly considered'by* the5 trial judge/’demonstra­ ted that the vendor constantly called for payment'of full' purchase moneys. She wrote an ultimatum that' unless the*full1 purchase price was tendered by 25th September,' 1982,' the■ sale'would no longer. proceed. The Appellant failed to comply' with that 7 ultimatum.'r It was argued that time was of the essence tt? the contractr and’that even.assuming that the time for'completion7was-waived by subsequent agreement between the parties, the extension did hot operate ‘as an entire waiver of the condition but has the’tiere'effect of substi­ tuting the extended time fox' that'origin ally4 fixed/ ’ The question that exercised the 'learned1 trial ''judge1 a’mind was whether the time was of theJ essence of' th^Eoptract entered into by the parties and if so whether the extension of such time operated as a waiver. S ■ - » - (jh • ■ • The learned author of Halsbury’s Lbws of England 3rd Edition Volume 8 paragraph 282 & 165 has put the matter thus:-- "282. Notice making time of-the4essence.'’■In^caseb where time is not originally of the essence of the . Contract or where a stipulation; mailing time of the essence has been waived, time may be made of the essence where there ia unreasonable delay, by a notice from the party who is not in default fixing a reasonable time for completion and stating that, in the event of non-completion within the time so fixed, he intends to enforce ;or .abandon .th.e Contract..." The Special condition whichfixed the date of completion to be within 30 days of receipt of States'Consent made time of the essence of the Contract. It is our view that extension of the time for completion by 25th September, 1982 did not operate as a waiver and as it was said in Barclay" vs * Messenger"(1874) 43 L. J. Ch. the extension had merely the effect of substituting the extended time for that origin all y flxed. The crarreapondence ;/ clearly shows that time was of the essence in this pass and such more so as the Respondent had expressed her wish to leave it completed before her death as she was in a falliag health. There Was inordinate delay on the part of the Appellant. Ue agree ' with the learned trial judge that the defaulting purchaser cannot seek to take advantage of the fact that the vendor from time to time extended time for completion. The learned judge was not wrong in refusing to grant to the defaulting purchaser an order for specific performance. The judge was also right to order the Respondent to refund the.deposit.to the Appellant., The Appellant Was neither entitled to the award of damages for the breach of contract which was occasioned by himself nor for. the award of ' , interest on his deposit ordered to be refunded to him. ; . . .. ,11. , ... • \ .• . V The aforegoing were the reasons that, led to the dismissal of this appeal and awarded costs to the Respondent both below and here. ' , ' , , • ■ • W... • ippecd i'in. M.. S. NGULUBE DEPUTY CHIEF JUSTICE .. I LYx ?-. ;t*: Rsaoandent ■ • • • * •: : • • • ^5 j’ i s: • • • • B. K. BUEUPE 1 :1 ACT IN? SUPREME COURT JUDGE = ♦ .u r^ri'soi £ai> d" Farrcri R Cv 'r ' ' . hj « • '. mloj EHq. af i«u«--h} Hueonds M. S. CHAILA ■ ------ -----ACTING SUPREME-COURT-JUDGE*——---------------- u <; '7 ■ li H & & > v «, w-iuaMniM*»tj ■»»!* । bi iwmwnmwnen a n ammn wck*. । urnw»*- i iA'Cvtjl vtUrwrt of the .court. .• , • .' ' •■< * V ••, .■ . phija Sitting nt . .■• w® dlswiseed the rf Court yhp refused to ,-- of the contract far the " r-l;<jr vi? ItlKjpl, Kitwe. We disspis8e^ the appeel ■ ’ •-■ --"■ ■ ■■ ■'n f -'rr?ur the? R(cs|mndent both in the court - - ati uhen that we would give ; ur revson« r;-b:’ uf wcra W;(k cegct 1st long between en 1st Decwber, 19^1 intoithel^ agreeing c.:: .‘ioocclff^lon uf Zewbln Stendard Cantract of b v:';, by th-: npptsHa’Ti Prom the • Hespe>>dentr pf i 5n fay the Bum of K2J,DCO.. The cah.dl- t13r.platthat the peftlea multi :sxehonge ha ‘.t.-tc CcriS^nt vculd be obtained within IS place within 3D-.days af the -::i.ir€Ufw:B of the Condit lane < v.o :<n thw V4th Novewhi-rr, '2/ • . n & 12UBS