GOMBA v MAKWARIMBA 1992 (2) ZLR 26 (S)

Flynote

Property — distinctions between sale and cession of rights in immovable property

Headnote

Despite the many distinctions between them, lawyers unfortunately persist in ignoring the difference between a sale of immovable property and "lease-to-buy" arrangement where the seller, who is not the owner of the property, has ceded to the buyer his rights to occupy immovable property.

Where a seller in a lease to buy arrangement seeks the eviction of the buyer the contract defining the terms of the agreement should be placed before the court and the owner may need to be cited as a party.

Even assuming that the seller had locus standi to bring an action for the eviction of the buyer without obtaining cession of action from the owner, the pleadings in the present case were inadequate to found a claim for cancellation.

• There was no express term of the agreement entitling the seller to cancel the contract upon failure to pay one instalment of the purchase price or the balance of the purchase price, and the seller had not attempted to establish a factual foundation for a claim that there was an implied term to that effect.

• Even if the seller could establish that the buyer's breach was sufficient to entitle her to cancel, she had to make election to cancel within a reasonable time and it had not been alleged that she had exercised her election within a reasonable time despite the fact that a lengthy period of time had elapsed since the alleged breach.

• There was no allegation by the seller that he had made a demand for the payment of the alleged outstanding instalments or that he had tendered to return the amount admittedly paid.

• The buyer had not repudiated the agreement but was disputing the terms of the agreement.

• There was no allegation that the seller had performed her part of the bargain. It must have been an implied term of the contract that the seller would do all things necessary to obtain the consent of the owner to the cession of rights and no allegation had been made that the seller had taken these steps.

The court left open the controversial question of whether the lessee-to-buy has a right to evict a person in occupation without cession of action from the owner.