Kisuda v. Akunaay and Anor., Civ. App. 1-DDm-72, 20/4/72, Mnzavas, J.

 Kisuda v. Akunaay and Anor., Civ. App. 1-DDm-72, 20/4/72, Mnzavas, J.

The appellant and the two respondents signed a contract on 13/1/71 whereby two respondents were to build a house for the appellant in Singida Township. The total cost was agreed

At Shs. 10,000/=. The parties further agreed that the building should be completed and handed over on 30/4/70. In due course however, there was some extension of time granted to the respondents to hand over the house on 30/7/71. By the fore mentioned date, the building had been half completed except a suit against the respondents before Singida District Court alleging branch of contract and praying for decision of the contract and payment by the respondents of Shs. 9,800/=, a sum paid as consideration for the construction of the building. The respondents contended that the appellant was also in breach of the contract as he had not paid Shs. 200/=, a sum due on the contract. It was further contended that the variation of the contract as to the date of completion had also varied other terms of the contract by implication. The District Court dismissed the suit on the ground that both parties had not honoured the terms of the contract. On appeal to the High Court.

            Held: (1) “With due respect to the learned Resident Magistrate I do not agree with him that this later agreement varied to other terms of contract stipulated tin the original written agreement dated 13/1/70. The later agreement only varied the completion date. If it purported to vary the other terms of contract e.g. the mode of payment of the agreed cost of the house, the variation should have been in writing as it was when the date of completion was varied. A written term of contract is usually varied by a written new agreement. It is unusual to vary it by a word of mouth nor can a variation be implied unless the evidence is such as would entitle the court to come to the conclusion that the written term of contract had been varied.” (2) “Having found that the completion date was varied to 30/7/71 and taking into account the fact that the respondents had not completed the house on 24/8/71 the day the appellant filed the suit against them, and the undisputed fact that the appellant  had already paid to the respondents a total of Shs. 9,800/= leaving a balance of Shs. 200/= unpaid; I do not wholly agree with the learned trial magistrate when he says that the appellant also failed to honour his obligations under the contract. In my view he more than honoured his obligations under the contract. Under the original written contract the appellant was to pay the respondents up to Shs. 8,000/= leaving a balance of Shs. 200/= to be paid on the day the respondents handed the completed house to him. The appellant has more than fulfilled his promise in that he did not only pay the agreed paid to them a total of Shs. 9,800/= The respondents on the other hand have not honoured their obligation under the contract in that they failed to complete the house on 30/7/71 as later agreed. They were clearly in breach of the contract. (3) “As to the question whether the appellant was entitled to damages the court held that even if there was a breach of the contract by the original defendants he would not award damages against them because the appellant did not claim for damages. I agree that damages cannot be ordered in favour of the appellant as he did not claim for damages in his plaint. What he wanted

The court to order was that he was entitled to rescind the contract and claim back his Shs. 9,800/= which he had already paid to the respondents.” (4) “Much as I would have liked to order rescission of the contract by the appellant as prayed I feel that such a step would not be wise in the circumstances of this case. The respondents have already constructed the whole house except the roof on the appellant’s plot …… They have indeed done most of the work they were required to do under the contract despite their dilatoriness. Such an order will not benefit any of the parties.” (5) Costs of Shs. 1,000/= awarded to appellant and respondents ordered to complete the house by 31/7/72 and hand it over on or before 1/8/72