African Century Limited v Zimbabwe Nantong International Private Limited

On 29 September 2017, the applicant purchased property comprising three pieces of land (Stands 1760 and 1761 Salisbury Township, also known as 120-122 Baines Avenue, Harare) from Christian Care for US$1,800,000.00. The sale was conducted through estate agents as a public sale. Prior to purchase, the applicant inspected the property and checked the Deeds Registry for encumbrances - none were found. Transfer was registered on 4 December 2017. However, the respondent, through a caretaker, denied the applicant possession. On 9 February 2018, the respondent claimed it held an "unjust enrichment and builder's lien" based on construction works it performed for Christian Care in 2012, for which it issued certificate No. 08 dated 1 June 2012. The respondent claimed the debt had grown to US$612,666.78 with interest. The applicant sought to vindicate its property, arguing it was an innocent purchaser who paid market value and was not privy to any contract between the respondent and Christian Care.

• Whether the application procedure was appropriate given alleged disputes of fact
• Whether Christian Care should have been joined as a party to the proceedings
• Whether a builder's lien could be enforced against a subsequent innocent purchaser who was not privy to the original construction contract
• Whether the applicant was unjustly enriched so as to give the respondent a lien over the property
• Whether the applicant, as registered owner, had the right to vindicate the property from the respondent

1. The respondent and all persons claiming through it were ordered to give vacant possession of the property (Stands 1760-1761 Salisbury Township, also known as 120-122 Baines Avenue, Harare) to the applicant upon service of the order, failing which the deputy sheriff was empowered to evict the respondent and grant vacant possession to the applicant. 2. The respondent was ordered to pay costs on the higher scale of attorney and client.

1. For a vindication claim to succeed, an applicant need only prove that it is the registered owner of the property; the burden then shifts to the possessor to prove a legal right to retain possession. 2. A builder's lien based on a debtor/creditor relationship cannot be enforced against a subsequent purchaser who was not privy to the original construction contract and was unaware of any debt. 3. An unjust enrichment claim cannot succeed against a bona fide purchaser who paid full market value for property, as any enrichment accrues to the seller/developer, not the purchaser. 4. A registered owner who paid market value for unencumbered property is entitled to vindicate that property from a party claiming a builder's lien based on works performed for a previous owner years before the sale, where no encumbrance was registered and the purchaser had no notice of the claim.

The court observed that the Constitutional Court referral application raised by the respondent moments before the hearing was clearly a delaying tactic designed to prevent the applicant from occupying its premises. The court noted that if the constitutional issue was genuine, it would have been raised during the pleadings and in the Heads of Argument, not as a last-minute ambush. The court also noted the chronological sequence of events showing that the respondent allowed Christian Care to publicly advertise and sell the property, allowed the applicant to inspect it, raised no objection to the sale or transfer, and only two months after transfer claimed a lien - suggesting the claim was not bona fide.

This case reinforces fundamental principles of property law in Zimbabwe regarding the vindication remedy available to registered owners, the requirements for establishing builder's liens and unjust enrichment claims, and the protection afforded to bona fide purchasers for value. It clarifies that a builder's lien cannot be enforced against a subsequent purchaser who was not privy to the construction contract, paid market value, and had no notice of any encumbrance. The case demonstrates the supremacy of registered title and the limited circumstances under which a possessor can resist a vindication claim by the registered owner. It also illustrates procedural issues regarding Constitutional Court referrals, emphasizing that such referrals cannot be raised as last-minute ambush tactics without proper notice and legal foundation.