The plaintiff, based in the United Kingdom and represented by his uncle Solomon Ndoro, sold residential premises (Number 15027 Unit "O" Seke, Chitungwiza) to the defendant in October 2009 for US$5,500. The parties entered into an oral sale agreement. The defendant, who was a tenant, paid US$4,200 but failed to pay the balance of US$1,300. The defendant took occupation of the premises in October 2009. According to the plaintiff, the parties mutually terminated the sale agreement due to the defendant's failure to pay the balance within the agreed 6-month period (by April 2010). Part of the US$4,200 paid was converted to rentals (at US$50-60 per month from October 2009), part offset utility bills, and US$1,100 was refunded to the defendant through his wife Grace Katsande via bank deposit and Western Union. The plaintiff also erected a durawall at the premises in September 2011 after cancellation. The defendant accepted the refund but denied agreeing to cancellation, claiming the agreement was still valid and that there was no fixed payment period. The defendant paid no further amounts toward the purchase price for over 3 years.
1. The defendant and all those claiming through him are evicted from stand No 15027 Unit "O" Seke, Chitungwiza. 2. The defendant shall pay holding over damages of US$50 per month from the date of service of summons to date of eviction and interest on that amount at the prescribed rate until payment in full. 3. The defendant shall bear the costs of suit on an ordinary scale.
1. In assessing contracts, the court is not interested in the abstract state of mind of parties but must decide based on the state of mind as manifested by word or deed. A party cannot rely on mental reservations or unspoken qualifications inconsistent with what is said or done. 2. Acceptance of a refund of purchase price constitutes manifestation of acceptance of cancellation of a sale agreement, and a party cannot maintain inconsistent positions by accepting the refund while denying cancellation. 3. Where no fixed period for payment is agreed in a sale agreement, the law implies that payment must be made within a reasonable period of time. 4. Failure to pay the full purchase price constitutes breach of a fundamental term of a sale agreement, entitling the seller to cancellation. 5. A party who breaches a sale agreement by non-payment and accepts a refund cannot claim the agreement remains valid and binding.
The court observed that "no person in the world would allow a buyer the terms which the defendant claims to have" (an indefinite payment period), suggesting the implausibility of the defendant's version. The court also remarked that it was "myopic" for the defendant to claim he was still in the process of buying the premises after 5 years with no payment for over 3 years. The court noted the significance of the defendant's failure to even counterclaim for transfer, which demonstrated his realization that he had not fulfilled his part of the bargain. These observations, while supporting the court's reasoning, go beyond what was strictly necessary for the decision and serve as commentary on the unreasonableness of the defendant's position.
This case is significant in Zimbabwean contract law for clarifying the principles of mutual cancellation of sale agreements and the evidential weight of conduct manifesting acceptance of cancellation. It reinforces that parties cannot maintain inconsistent positions (accepting refunds while denying cancellation) and that conduct speaks louder than subjective intentions. The case also establishes that where no fixed payment period is agreed in a sale agreement, payment must be made within a reasonable time, with the court having discretion to determine reasonableness based on circumstances. It demonstrates the application of the objective theory of contract interpretation, focusing on manifested intention rather than unexpressed mental reservations.