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The court below held that the appellant had lost his right to cancel the agreement either through estoppel, tacit variation, election or waiver, thus The appellant never tendered any payment made to him after due date but simply insisted on cancellation without reimbursement.

In fact, even when the final cheque is excluded, the payments made and accepted had already exceeded the agreed purchase price but the appellant had continued visiting and pestering the respondent for more payments. There was no evidence adduced in court that the final cheque was returned to the respondent, the probability being that it was also converted to appellant’s own use as were all payments made before and after due date. When the respondent sent a cheque for the amount of $9 130 000 in “full and final settlement of the purchase price”, the appellant sued for cancellation of the contract and eviction of the respondent from the property.

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The appellant did nothing about the issue but, instead, continued to accept further payments up to five months thereafter until the full purchase price was exceeded. By the end of August 2004 when the balance of $40 million should have been paid in full, only about half that amount had been deposited into the appellant’s account. However, thereafter she commenced payment of instalments but in a very irregular manner and in disparately varying amounts as shown below by the summary of the payments constructed from the record.Įxhibit V 28/2/05 9 130 000 (submitted in full and final settlement)īe that as it may the appellant continued to receive the above irregular payments in varying sums without demur. In terms of clause 2 of the agreement of sale the respondent was required to pay a deposit of $10 million on the date of signing of the agreement, which she did, and monthly instalments of $6 million up to the end of August 2004.įor the first two months (March and April 2004) the respondent did not pay any instalments as she claimed that she had not been given vacant possession of the property by the appellant and that she had to resist in and out of court disturbances from other persons who claimed to have purchased or rented the same property. “The Learned Magistrate erred in failing to consider the fact that the respondent failed to pay the purchase price in full on time and as such the appellant had a right to cancel the contract since time was of the essence.”īasically the common cause facts are that the appellant and owner of the property entered into a contract of sale of the property with the respondent. The one ground of appeal is couched as follows:.

The burden of the appeal is that the court a quo erred in finding against the appellant in the application for the cancellation of an agreement of sale and order for the eviction of the respondent from Shop Number 22035 Landas Business Centre, Chihota hereinafter referred to as “the property”. HLATSHWAYO J: This is an appeal against the decision of the magistrate sitting in the Marondera magistrate court. HARARE, 13 September 2011 and 14 March 2018