HALES v DOVERICK INVESTMENTS (PVT) LTD 1998 (2) ZLR 235 (H)

Flynote

Practice and procedure — judgment — summary judgment — defence to — defendant must establish that has good prima facie defence — not enough to make bald assertions or vague generalisations

Property — lien — purchaser of land claiming to have made improvements — requirements for establishing such lien

Headnote

A sale of a hotel and the land on which the hotel was situated was cancelled by the seller because the buyer had breached the contract by failing to make payments in accordance with the contract. The buyer did not deny that it had breached the contract by failing to make these payments. However, it opposed the seller's application for summary judgment for its ejectment from the property on the grounds that it had made improvements to property and was therefore entitled to retain possession of the property under an improvement lien. The seller denied that the buyer had made any improvements on the property and that the buyer had any defence to the application for summary judgment for ejectment.

Held, where a plaintiff applies for summary judgment against the defendant and the defendant raises a defence, the onus is on the defendant to satisfy the court that he has a good prima facie defence. He must allege facts which if proved at the trial would entitle him to succeed in his defence at the trial. He does not have to set out the facts exhaustively but he must set out the material facts upon which he bases his defence with sufficient clarity and in sufficient detail to allow the court to decide whether, if these facts are proved at the trial, this will constitute valid defence to the plaintiff's claim. It is not sufficient for the defendant to make vague generalisations or to provide bald and sketchy facts.

Held, further, that a buyer of property has an improvement lien if he has made useful and not luxurious improvements to the property and that he has made the improvements for his own use and with the bona fide intention of becoming the owner of the property. The improvements made must have actually enhanced the value of the property such that the seller would be unjustly enriched unless the buyer is compensated for these improvements.

Held, that the buyer in the present case had failed to satisfy the court that it had a good prima facie defence to the seller's claim. It had simply made bald assertions that it had made improvements, but failed to give any details of the improvements and the value thereof. It had failed to allege that the improvements were useful and not luxurious. It made no allegation that the seller had been unjustly enriched at the expense of the buyer. It made no allegation that the improvements had been made for its own use with the bona fide intention of becoming the owner of the property.