Rotazom Investments (Pvt) Ltd v Byco (Pvt) Ltd & Anor

### Preamble
1
HCC52/25
HCCC69/25
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ROTAZOM INVESTMENTS (PVT) LTD

Versus

BYCO (PVT) LTD

And

LOGRY TRADING (PVT) LTD

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI, 19,20,29 October 2021,15,21May,18 June &12 September 2025

G OChieng, for the plaintiff

D Kanokanga, for the 1st defendant

No appearance for the 2nd defendant

Civil Trial

MUZOFA J:- [1] The delay in finalising this matter is regrettable. The Plaintiff issued out summons against the 1st defendant on 28 February 2018. The cumulative delay between the issuance of summons and the handing down of judgment is an unparalleled period of 7 years. This is unfortunate, matters must be finalised within a reasonable time for parties to move on with their lives. The case travelled a checkered path with detours occasioned to a greater extent by the 1st defendant.

[2] The plaintiff and the defendants are duly registered companies in terms of the law.

[3] The plaintiff’s claim against the 1st defendant as amended was as follows,

Payment of US$255 860.28 being rentals and utilities for the period February 2015 to May 2017 and interest thereon at 5% per annum

Holding over damages in the sum of US$ 9 200 per month from 31 June 2017 to date of eviction

Eviction of the defendant and all those claiming interest or title through it from number 33 Walts Road, Ardbennie, Harare.

Costs of suit at a higher scale.

[4] The plaintiff and the 1st defendant entered into a lease agreement valid for three years from June 2014 to May 2017 in respect of certain premises situate at number 33 Watts Road New Ardbennie, Harare ‘the property’.

[5] From the onset, I must admit that the relationship between the plaintiff and the 1st defendant was very precarious and this dispute together with its attendant issues were inevitable. Previously the property was owned by a single persona. When the previous owner sold the property, one Prashant Shar (representing the plaintiff) purchased the property and the buildings. One Gabriel Mugabe (representing the 1st defendant) later purchased the factory on the property. The two agreed that the 1st defendant would lease the property from the plaintiff and continue with business.

[6] The 2nd defendant was a tenant on the property together with the 1st defendant and others. The tenants shared bills for utilities on a pro-rata basis. It was joined to the litigation through an application by the 1st defendant. The 1st defendant filed a counter claim against the plaintiff and the 2nd defendant for alleged illegal abstraction of electricity to the 1st defendant’s prejudice.

[7] The lease agreement between the plaintiff and the 1st defendant provided for renewal but it could not pass the first period. The relationship between the two became unsustainable and the plaintiff opted not to renew the lease agreement. By letter dated 27 February 2017 the plaintiff advised the 1st defendant of its intention to terminate the lease after its expiration at the end of May 2017. When the 1st defendant did not give vacant possession, the plaintiff approached the Court for recourse as outlined.

The Plea

[8] The 1st defendant resisted the claim. It filed a plea in abatement, that the monetary claims had prescribed and pleaded over the merits. It also filed a claim in reconvention.

[9] On the special plea of prescription, 1st defendant averred that all claims before 2015 fell within the prescriptive period since the summons were issued on 28 February 2018.

[10] On the merits the plea as amended raised three issues, set off, enrichment lien and that its equipment was fixed to the premises and incapable of removal. On that basis eviction could not be granted. Further, that there was no valid termination of the lease agreement.

[11] Being wiser, after taking note of the special plea, the plaintiff opted to amend its claim to bring it within the acceptable period. The special plea naturally fell away.

The counter claim

[12] Parties shall be referred to as in the main claim for convenience.

[13] The 1st defendant claimed US$453 217-33 against the plaintiff and the 2nd defendant being monies for unlawful abstraction and diversion of electricity from the 2nd defendant’s meter between April 2014 to June 6, 2014, interest at the prescribed rate from the date of demand to the date of full payment and costs on an attorney – client scale.

[14] According to the 1st defendant the plaintiff and the 2nd defendant had a common beneficial ownership, directorship, general business and administrative control. In short, the two were one in business.  Each tenant on the property had its own electricity meter. However, the plaintiff and the 2nd defendant colluded and illegally diverted electricity from the 1st defendant’s meter. Unaware of this disingenuous conduct, the 1st defendant at all times settled the bills to its prejudice. It averred that Mr Patel representing the 2nd defendant admitted that such connections were done.

Plea to the claim in reconvention

Plaintiff’s plea

[15] The plaintiff denied the claim. The plaintiff denied any association with the 2nd defendant. It averred that at some time the two companies shared one director. That relationship lapsed sometime back. It raised prescription. It denied conniving with 2nd defendant to illegally divert electricity from the 1st defendant. It denied set off, the enrichment lien and that the equipment is fixed to the ground / building.

2nd Defendant’s Plea

[16] It also denied any liability completely. It also denied that its Mr Patel at some point admitted the claim.

[17] It appears when the application for joinder of the 2nd defendant was made, the 2nd defendant was under Provisional Liquidation. The liquidator must have been cited. However, the provisional order was not confirmed. None of the parties raised issue on the 2nd defendant’s status.

The triable issues

[18] As a result of how the dispute unfolded on the papers including various concessions and reformations the issues were streamlined. On 31 May 2019 the parties filed a joint pre-trial conference minute identifying the issues for determination at trial as follows;

i) Whether the defendant is indebted to the Plaintiff in the sum of US$255 860.28 from March 2015 to May 2017 for rentals and utilities.

ii) Whether the defendant is liable for holding over damages in the sum of US$9 200.00 per month from June 2017 to date of eviction.

iii) Whether an order of eviction should be granted against the defendant and all those claiming title through it.

iv) Whether the plaintiff is indebted to the defendant for illegal electricity connection in the sum of US$453 217.33.

[19] An order by consent was granted by MUSAKWA J (as he then was ) which settled the claim for arrear rentals and utilities. That took care of the first issue referred to trial.

[20] Whether by design or not, it appears the claim by the 1st defendant as against the 2nd defendant simply fell through there was no issue for determination referred to trial.

Interlocutory applications

[21] When the matter was ready for hearing Mr Nyahuma, the 1st defendant’s erstwhile legal practitioner applied for removal of the matter from the roll. He averred that the 1st defendant had applied under HC5617/21 to be placed under cooperate rescue. I was referred to s125 of the Insolvency Act (Chapter 6:07)’ the Act’ that no legal proceedings shall take place once such an application has been made.

[22] Mr Nyahuma was candid that the application under HC5617/21 of the Act was made well after closure of pleadings in this case.

[23] The application was opposed mainly on the basis that by virtue of s126 (1) (c) of the Act these proceedings fall within the exceptions. The 1st defendant raised set off to the claim by the plaintiff. Mr Nyahuma conceded the point. I dismissed the application in a brief ruling.

[24] Despite the concession Mr Nyahuma took to his feet and made two applications, one for leave to appeal my interlocutory decision. The second one was for an inspection in loco. Both applications were opposed.

[25] On the first application, pressed on how the 1st defendant can proceed in the face of a concession, Mr Nyahuma abandoned the application. The concession had not been withdrawn; there was no allegation that it was not properly made.

[26] On the second application, it was submitted that the court should conduct an inspection in loco to assist it to decide whether the 1st defendant’s equipment was fixed to the buildings and the ground.

[27]I dismissed the 2nd application on the basis that the court lacks expertise to make such observations. It was up to the parties to place expert opinion on the issues. The matter then proceeded to trial. I comment in passing that the 1st defendant did not discover any documents to verify the condition of its equipment, to ask the Court to assess the condition of the equipment without expert evidence was therefore not helpful. The Court is not an expert on the issue.

Plaintiff’s Case

[28] Eventually the trial took off. In his opening remarks Mr Ochieng who was obviously dismayed by the 1st defendant’s dilatory tactics chose to see a silver lining in all this, that it streamlined the issues. The plaintiff’s claim was limited to eviction and holding over damages only.

[29] Prashant Shah ‘Prashant’ was the 1st witness. He was a director at plaintiff based at 33 Walts Road. The property has two blocks. One block was occupied by an associate company (to my mind the 2nd defendant) and the 1st defendant occupied the other block.

[30] The property was purchased from Rundles Limited in 2001 when it went into liquidation. The plaintiff purchased the property and the 1st defendant purchased the factory on the property. The parties agreed that 1st defendant would lease the property from the plaintiff.

[31] It was a material term of the agreement that the 1st defendant would pay rentals in the sum of US$8 000 and 50% of the City of Harare rates. The lease was valid for 3 years from June 2014 to May 2017 terminable on three months’ notice by either party.

[32] The 1st defendant defaulted in payments. Plaintiff decided to terminate the lease. The plaintiff advised the 1st defendant by letter dated 27 February 2017 of its intention to terminate the lease agreement.

[33] The 1st defendant tried to engage with the plaintiff. Although conceding arrears it raised the illegal diversion of electricity and that parties should negotiate a set off. It appears there was a lot of engagements but nothing much was salvaged.

[34] In a nutshell, the plaintiff required the premises. It is now an approved site for contract manufacturing of pharmaceutical products. He did not delve much into what was owed in holding over damages and arrear rentals leaving it for the accountant.

[35]. As regards 2nd defendant’s involvement, he said plaintiff had a 50% shareholding which was sold to one Ashwin Patel sometime in 2011 or 2012 he was no longer very sure.

[36] After his evidence and cross-examination, Mr Nyahuma was at it again. He sought to deal with the interlocutory application to have the matter removed from the roll. His efforts to re-open the issue were unsuccessful; the court had pronounced itself.

[37] It is important that legal practitioners diligently prepare for court so that they articulate issues once and for all. The persistence in doing all the wrong things by Mr Nyahuma was unparalleled. He was simply confounded and not sure about what he was doing. The application degenerated to pleas of indulgence. However, the procedure taken by Mr Nyahuma was unknown in our rules. I dismissed it.

[38]. Finally, Abigail Kawanza took to the stand as the 2nd witness. She was an accountant at Plaintiff. She knew the 1st and 2nd defendants as tenants on the plaintiff’s property.

[39] She compiled and kept records of all amounts payable by the 1st defendant. She gave a detailed account of the computations particularly the pro-rata amounts from City of Harare bills. She said the debt was cleared up to September 2021.

[40] The plaintiff closed its case after Abigail was cross-examined. An application for absolution from the instance was made. I granted the application in respect of the holding over damages and dismissed it in respect of the claim for eviction under HH 249/22.

[41] Both parties appealed the decision and the matter stalled for quite some time until it was referred to me at Chinhoyi High Court.

[42] When the matter resumed almost 4 years later, the 1st defendant changed legal practitioners. The change took place when the matter was sat down for hearing, it had to be postponed for the 1st defendant to engage another legal practitioner. Mr Kanokanga was the legal practitioner of choice. He viewed the proceedings differently. This case demonstrates the difficulties that arise when a matter is not finalised expeditiously. A party may recast its case and seek to approach it differently. It also shows the effect of changing legal practitioners midstream of a trial where the subsequent practitioners have no inkling of the previous processes.

[43] Mr Kanokanga applied to file further pleadings, particularly an expert document to show that the 1st   defendant’s equipment was fixed to the buildings/ground. Secondly that one Gabriel Mugabe was the 1st defendant’s representative. The application was opposed.

[44]I dismissed the application in favour of finality to litigation. Firstly, there was no issue on the 1st defendant’s representation. It is only where the institution of the proceedings is impugned that sufficient evidence must be availed, which satisfies the court that the litigation in the name of the artificial entity is being brought by an authorized natural person at its behest. See Cuthbert Elkana Dube v PSMAS SC 73/19 at paras [38] and [41], Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd and Ors 1995 (4) SA 790 at 803F, Madzivire & Ors v Zvariwadzwa & Ors 2005 (2) ZLR 148 and TFS Management Co (Pvt) Ltd v Graspeak Investments (Pvt) Ltd & Ors 2005 (1) ZLR 333 at 336F-337G.

[45] Secondly from inception the 1st defendant pleaded that the factory equipment was fixed to the buildings/ground but decided not to discover any documents that prove the plea. Litigation is never thought through during trial, it must be conceptualised and cast through filing of pleadings. There was no averment that the evidence could not be secured at discovery stage. This matter has dragged for more than 5 years. To allow filing of documents at the eleventh hour means going back which is inconvenient for all parties except the 1st defendant who still occupies the property to the plaintiff’s prejudice.

1st Defendant’s Case

[46] Gabriel Mugabe ‘Gabriel’ the first defendant’s managing director gave evidence. He was the sole witness.

[47] He said 1st defendant occupied stand 40 New Ardbennie Harare and not stand 32B Ardbennie as described in the lease agreement. The 1st defendant’s main business was production of shelving products; office furniture equipment. Its equipment was attached to the building and part of it supported by steel attached to the ground. It cannot be removed.

[48] He explained how the precarious relationship between the parties came about. He said initially the premises were owned by one company. The owner sold the premises to Shar first, later he purchased the business (comprising of the equipment). The parties then entered into a lease agreement.

[49] Under cross-examination he confirmed that 1st defendant has remained on the property but no rentals have been paid. The first defendant then closed its case.

[50] The long-drawn trial must have worn the 1st defendant out, nothing much was canvassed in respect of his plea, nothing on the termination of the lease agreement and nothing on set off. The evidence was skeletal so to speak. It is incomprehensible that he simply said the equipment was fixed to the ground. No further description of how it is fixed.

Closing Submissions

[51] Mr Ochieng with much ease addressed the court first on the claim in re-convention for special damages. He averred that no evidence was led to prove the claim of US$453 217-33. The plaintiff must be absolved in the event the plea of prescription does not succeed.

[52] On eviction, it was submitted that plaintiff being the owner of the property is entitled to vindicate its property. On the authority of Ormashah v Karasa 1996(1) ZLR 584 (H) that a tenant has no right to retain property where the lease has been terminated.

[53] On the enrichment lien, that the 1st defendant conceded that the equipment was part of the building some fifteen years before the lease agreement. By virtue of industrialization a thing permanently attached to another becomes part of the other reference was made to Silberberg 3rd ed at P 206. In any event parties anticipated the termination and regulated it.

[54] On termination, that the lease terminated by effluxion of time. The 1st defendant confirmed receiving the letter terminating the lease. There was no relocation. 1st defendant cannot plead statutory tenancy under the Commercial Premises Rent SI676/83 522 thereof due to the breach. It was not even paying any rentals.

[55] On costs, much emphasis for costs on a higher scale was motivated considering the 1st defendant approach to this litigation. It filed a counter claim but decided not to prove it. It simply burdened the plaintiff with costs.

[56] For the 1st defendant, Mr Kanokanga, was very tactful, maybe finding nothing tenable in harping on the substance of the termination he relied on the form which certainly cannot surmount such a claim. He submitted that there was no termination in respect of the property but stand 32b. The summons seeks eviction of 1st defendant from stand 33 Walts Road Ardbennie, the letter did not terminate the lease on stand 40 Ardbennie.

[57] On the enrichment lien, he submitted that the 1st defendant purchased the equipment which was already fixed to the ground and the plaintiff’s building. It cannot be removed. 1st defendant has a lien. It has a right of retention until it is paid, l was referred to the case of Masvingo v ZWU HMA 48/17 at paragraph 40 for the submission. The Plaintiff would be unjustly enriched. Sadly, the 1st defendant did not know the extent of the enrichment.

[58] Two cases were referred to, Johnson & Company Limited v Grand Hotel Theatre Company Limited in Liquidation 1097 ORC 42 and Olivier and Other Heiarhot & Company 1906 TS 497 which dealt with the issue of movables fixed to immovables and at what point they become permanent fixtures. The golden thread running through the two cases is that a determination on whether a structure is movable or immovable/ or is affixed to immovables depends on many variables that include the nature of the structure, the intention of the builder and the manner in which it is fixed to the soil.

[59] Finally, he indicated that the claim in reconvention was no longer being pursued.

Issues

[60] After everything was said and done, two issues stand for determination,

(i) Whether the lease between the parties was lawfully terminated.

(ii) Whether the 1st defendant has a valid defence to the claim for eviction.

Termination

[61] It is common cause that the plaintiff and the 1st defendant entered into a lease agreement for certain premises situate at stand 32B Ardbennie township Harare. The lease was valid from 1st of June 2014 terminating on 31 May 2017.

[62] The side show on the identification of the property is just a red herring by the 1st defendant. The 1st defendant under cross-examination confirmed that stand 32B consisted of stand 40 and 32A. He said he occupied stand 40. It was clarified that 33 Walts Road is the street address. At all times the written communication to the 1st defendant from the plaintiff was addressed to 33 Walts Road.

[63] For the 1st defendant to claim that there was no termination in respect of the property it leased is mischievous. The letter of termination was clear I reproduce the relevant part which read,

‘We refer to the above matter and in particular, to the lease agreement entered into on the 9th of June 2014.

We have been instructed as we hereby do, to give you notice of our client’s intention to terminate the lease agreement which expires on the 31st of May 2017. Our clients wish to utilise the office space...’

[64] The plaintiff and the 1st defendant entered into one lease agreement on the 9th of June 2014. It is the lease agreement that related to the property that the 1st defendant occupied and still occupies. To claim that the letter did not terminate the lease agreement for failure to identify the property is unattainable. In any event the parties entered into a single contract in respect of one property. The argument by Mr Kanokanga has no merit.

[65] Initially the 1st defendant contested the termination on the basis that there was no juridical act to actually terminate Mr Kanokanga must have abandoned that line of argument and rightly so. It was not motivated both in the evidence by the 1st defendant’s representative and in the closing submissions. There lies the folly in hopping from one law firm to another. The legal practitioners may perceive the case differently.

[66] The learned author, RH Christie, Business Law in Zimbabwe 2nd Ed. Juta; Company at page 273 cited in Washmate Motors Centre Private Ltd v City of Harare HH 32/14  opine that,

“The requirement that a lease be for a specified time calls for slightly fuller treatment. Commonly the time is specified as a fixed number of months or years or until should not be specified as continuity until the happening of a certain event. In all such cases, the lease terminates at the end of the fixed period or on the happening of the event, without the necessity of notice by either party; Tiopaze v Bulawayo Municipality 1923 AD 317 325, a case on a contract of employment decided according to principles equally applicable to contracts at lease”

[67] Luckily the parties regulated their relationship to the full. Clause 2 of the lease provides.

“The lease shall be for a period of 3 (three) years commencing on the 1st day of June 2014 and terminating on the 31st day of May 2017 with either party giving the other three months’ written notice of their intention to terminate the lease. Notwithstanding the aforesaid termination, unless written notice has been given by the lessor or the tenant three calendar months before the said date of termination this lease shall continue beyond such date on the same terms and conditions terminable by either party by six calendar months written notice. The lessor shall have the first option to another lease on expiration of current.” (italics for emphasis)

[68] The clause needs no canons of statutory interpretation. There was no requirement of some juridical act except the written notice. This is the reason parties agreed that in the absence of such notice by either party the lease relocates on the same terms and conditions subject to 6 months termination of the notice period.

[67] The plaintiff’s submissions resonate with the proper position at law, the lease terminated by effluxion of time and it was not necessary to terminate. Despite that the communications between the parties show that the 1st defendant had occasionally breached the lease agreement by its failure to remit the rentals as agreed. The plaintiff did not persist with this point to terminate opting to confine itself to effluxion of time.

[68] In any event, Gabriel in his evidence conceded that the 1st defendant’s rentals were not timeously paid. Although the plaintiff referred to the breach it seems it did not persist with it as the reason for termination since the letter of termination was silent on it. It is trite that parties are bound by their terms no matter how onerous. Courts are enjoined to hold parties to their contract and this case is no exception. The letter dated 17 February 2017 giving notice was within the three-month period notice that parties agreed to. The lease was therefore properly terminated.

Enrichment Lien

[69] A lien is a right of retention which arises from the fact that one man has put money or money’s worth into the property of another. Liens are generally divided into enrichment liens and debtor- creditor liens. Enrichment liens may be in the form of improvement or salvage liens.Improvement liens are for expenses incurred to improve the property leading to an enhancement of the market value of the propriety. On the other hand, salvage liens are paid to a possessor who maintains another’s property so that it does not depreciate in value. See also City of Masvingo case (supra)

[70] An owner of property cannot be compelled to accept any form of improvement to his or her property. A court dealing with such a claim will consider various factors like the financial status of the owner of the property, whether the owner would have effected such improvements, whether the improvements can be separated from the property and the owner’s intentions whether to keep the property or to sale it. No enrichment lien exists against an owner of property unless such owner has been enriched at the expense of the possessor claiming such lien. Thus, to be valid the possessor must establish on a balance of probabilities that the owner was enriched as a result of an expenditure incurred by the possessor. The lien is a form of security for the possessor’s claim. To my mind the possessor must make a claim for the improvements. A possessor cannot simply claim a lien which has no value attached to it.

[72] Where a possessor raises lien to defeat a rei vindicatio as in this case, it must present all the facts necessary to establish the lawfulness of its possession. In Davis Bender & Anor v Purple Fountain Properties 118 (Pty) Ltd [2016] ZAGP JHC 198 the respondent being the possessor had set out figures it claimed to be a basis of the debtor-creditor lien in its bid to resist eviction. The court dismissed the defence of a lien on the basis that the respondent failed to establish the debtor – creditor lien. The legal principle that he who alleges must prove was emphasized.

[73] Since the claim in re convention was abandoned, though not submitted it followed that plea of set off was also abandoned. The 1st defendant has no claim against the plaintiff.

[74] The lien in this case is said to be the equipment that is fixed to the plaintiff’s building. There was no shred of evidence on how this equipment looks like and how it is fixed to the buildings. The best the defendant could say was that the equipment cannot be moved.

[75] The real question is whether the defendant put in some money(s) to improve the plaintiff’s property/ buildings. That is the essence of an improvement lien. The 1st defendant remained coy and did not give much information.

[76] The parties duly regulated their relationship in so far as improvements in Clause 10 of the agreement. Clause 10 (a) provides in part,

‘No alterations structural or otherwise, additions or improvements shall be made in or to the leased property without the written consent of the landlord… The tenant shall, however have the right prior to the termination of this lease to remove any fixtures and fittings brought on to or erected by him on the leased premises provided always that the tenant shall make good at his own expense any damage to the leased premises caused by such removal and inside event of his failing to do so the landlord my carry out the works and to tenant shall forth with reimburse him for the cost thereof”

[77] Gabriel was asked a direct question on the import of Clause 10 of the agreement, maybe after realizing the difficulty in establishing the lien on improvements, he confirmed that he was not entitled to compensation and he did not rely on improvements post 2021. This date was not contextualized, for it to be relevant to the lien.

[78]   Even if he relied on improvements, the Court was not told to what extent the plaintiff’s building was improved. This was critical in this case because in terms of clause 8(a) of the agreement the parties agreed that the leased premises were in good order and condition at the time the 1st defendant took occupation. Further, that upon termination of contract, the 1st defendant was required to return ‘the said premises to the Landlord in the same good, repair and condition.’

[79] The lease agreement does not refer to any equipment fixed to the building or not that belonged to the 1st defendant. What is referred to are the premises and the 1st defendant signed the agreement and undertook to return the premises as it was on occupation. He agreed that for any improvements there would be no compensation.

[80] What probably hits hardest against the claim of a lien is Gabriel’s evidence. Under cross examination he conceded that what existed before he took occupation is part of what he leased. To my mind, this means what the business used for production was leased out to it.

[79] The combined effect of the concession in respect of improvements as regulated in Clause 10 and the concession of what the 1st defendant leased leaves no equipment to relate to as improvement to the property. In any event the Court was not even told what exactly could not be moved. Parties are bound by the terms of their contract. As stated in Magodora’s & Ors v Care International Zimbabwe SC 24/14 that,

‘In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of public policy. See Wells v South African Alumenite Company 1927 AD 69 at 73; Christie: The Law of Contract in South Africa (3rd ed.) at pp. 14-15. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms. See South African Mutual Aid Society v Cape Town Chamber of Commerce 1962 (1) SA 598 (A) at 615D; First National Bank of SA Ltd v Transvaal Rugby Union & Another 1997 (3) SA 851 (W) at 864E-H.’

[80] This takes me to another salient factor on improvement lien, did the 1st defendant add value to the property. The 1st defendant failed to show that any value was added to the property. On its part the plaintiff’s representative said plaintiff needs the property for a completely different business.

[81] Even if a lien is a right that arises as a matter of law it is from the evidence that a Court can identify the lien. In the Davis case (supra), in an application the respondent did not place evidence to establish the lien the Court had this to say which applies equally to this case,

‘In the event the respondent were to be allowed to rely on the debtor-creditor lien to defeat the rei vindicatio it has not made out a case for such a lien. It did present all the facts necessary to establish the lawfulness of its possession on the ground that it holds a valid a debtor-creditor lien. All the respondent did was to broadly identify the facts it relied upon for the enrichment lien and then attached its statement of claim in the arbitration proceedings… The problem for the respondent though is that those allegations are bald statements of fact (facta probanda), and the evidence (facta probantia) supporting them, by its own version, will still have to be presented at the arbitration hearing. This unfortunately does not suffice if the respondent is to successfully resist the rei vindicatio of the applicants. This court cannot accept that the respondent has established a valid debtor-creditor lien by placing only facta probanda without any supporting evidence before it. To defeat a rei vindicatio with a debtor-creditor lien the bona fide possessor must put up detailed credible evidence supporting all the facts it relies upon. These, at the very least, should consist of evidence of the nature and details of the contract, its performance in terms of the contract (when, where and how it performed), details of the breach of the contract by the owner of the property (who obviously would be the party seeking the rei vindicatio), the exact amount outstanding and how that amount has been computed.’

[82] The sentiments apply to this case in that the 1st defendant was required to place before the Court evidence to establish the lien. The Court is not expected to simply take the 1st defendant’s word as the gospel truth; its findings are based on credible evidence placed before it.

[83] As already stated in this judgment the 1st defendant’s case was poorly conceptualized and inelegantly presented. The fault lies squarely on the erstwhile legal practitioners. The   actio rei vindicatio is jealously guarded, where a possessor raises a defence it must be established on a balance of probabilities. See Chetty v Naidoo 1974 (3) SA 13 (A) at 20B-C.

[84] From the foregoing the lien claimed by the 1st defendant was not proved on a balance of probabilities. The evidence from the 1st defendant failed to show that there were improvements that it was entitled to be compensated.  What emerged from the evidence is that the equipment that the 1st defendant used in its business was part of what it leased from the plaintiff. It had become part of the building some 25 years ago. In light of this there can be no lien based on the said equipment.

[85] The 1st defendant was not too keen to rely on improvements effected after taking occupation since the lease agreement regulated the parties’ conduct upon termination. No compensation was due.

[86] The finding is that the lease was properly terminated and the 1st defendant has no valid defence against the claim of eviction. Since the claim against the 2nd defendant was not pursued and the claim against the plaintiff abandoned, I shall grant absolution.

[87] As regards costs, the 1st defendant has conducted its self badly throughout the proceedings. The 1st defendant is still in occupation of the property; it was instrumental in the delays that beset this case which means all this time the 1st defendant benefitted from the property while the plaintiff waited. Secondly it filed a claim that it only abandoned at the end of the trial, viz, in the closing submissions. It did not adduce any evidence on the claim. The only inference is that the claim was meant to harass the plaintiff. I am fortified in this inference in that; the 1st defendant did not discover a single document that links the plaintiff to the claim. This long-drawn litigation has obviously impacted the plaintiff. However, this was purely the erstwhile legal practitioners’ inept work. The 1st defendant is already in the deep woods; it cannot be saddled with punitive costs. It had a right to defend its claim. I shall grant cost on an ordinary scale.

Accordingly, the following order is made,

The claim for the eviction of the 1st defendant and all those claiming interest or title through it from number 33 Walts Road, Ardbennie, Harare be and is hereby granted.

The plaintiff and the 1st defendant be and are hereby absolved from the instance in the claim in reconvention.

Costs against the 1st defendant on an ordinary scale.

Atherstone & Cook, Plaintiff’s legal practitioners.

Kanokanga & Partners, the 1st Defendant’s legal practitioners