Land Law Module 1

THE UNIVERSITY OF ZAMBIA
INSTITUTE OF DISTANCE EDUCTION
BACHELOR OF LAWS
MODULE
LPR 3920: LAND LAW

© COPYRIGHT
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,
or transmitted in any form or by any means, electronic or mechanical, including photocopying,
recording or otherwise without the permission of the University of Zambia, Institute of Distance
Education.
Inquiries concerning reproduction or rights and requests for additional training materials should
be addressed to:
The Director,
Institute of Distance Education
The University of Zambia
P.O. Box 32379
Lusaka
Zambia
Tel: +211 290719
Fax: +211 253952
E-mail: director-ide@unza.zm
Website: www.unza.zm
1
ACKNOWLEDGEMENT
The University of Zambia (UNZA), Institute of Distance Education (IDE) wishes to thank Mr.
Greenwell LYEMPE, for writing this first module of LPR 3920 titled LAND LAW.
2
Table of Content
© COPYRIGHT ................................................................................................................................................... 1
ACKNOWLEDGEMENT .................................................................................................................................... 2
STUDY SKILLS ................................................................................................................................................... 6
NEED HELP? ....................................................................................................................................................... 7
LAND LAW COURSE OUTLINE ...................................................................................................................... 8
METHOD OF TEACHING ............................................................................................................................... 10
ASSESSMENT: .................................................................................................................................................. 10
REQUIRED READINGS ................................................................................................................................... 11
RECOMMENDED READINGS ........................................................................................................................ 11
UNIT 1 ................................................................................................................................................................ 12
LAND LAW ...............................................................................................................................................................12
Introduction ........................................................................................................................................................12
Learning Outcomes .............................................................................................................................................12
Definition of Land ...............................................................................................................................................12
Sources of land law in Zambia ............................................................................................................................14
Statutes Enacted by the Zambian Legislature .....................................................................................................15
Writings of Eminent Authors ...............................................................................................................................17
Summary .............................................................................................................................................................17
UNIT 2 ................................................................................................................................................................ 18
HISTORICAL BACKGROUND OF LAND TENURE SYSTEM IN ZAMBIA .........................................................................18
Introduction ........................................................................................................................................................18
Pre and Post-Independence Land Policy in Zambia ...........................................................................................18
Policy under the One Party State 1964 – 1972 ...................................................................................................19
The Western Province (Miscellaneous Provisions) Act, 1970 ............................................................................20
Land Reforms in the Second Republic ................................................................................................................20
The Doctrine of Tenure .......................................................................................................................................21
Unit Summary .....................................................................................................................................................26
Activity 2.0 ..........................................................................................................................................................26
UNIT 3 ................................................................................................................................................................ 27
OWNERSHIP OF LAND AND ITS LIMITATIONS ...........................................................................................................27
Introduction ........................................................................................................................................................27
The Concept of Ownership..................................................................................................................................27
Ownership at Common Law ................................................................................................................................27
Unit Summary .....................................................................................................................................................34
Activity ................................................................................................................................................................34
UNIT 4 ................................................................................................................................................................ 36
FIXTURES AND FITTING ............................................................................................................................................36
3
Introduction ........................................................................................................................................................36
Fixtures ...............................................................................................................................................................36
Distinction between a Fixture and Fitting ..........................................................................................................36
Tests for Determining Whether a Chattel Has Become a Fixture .......................................................................36
Landlord and Tenant...........................................................................................................................................37
Summary of Unit Three. ......................................................................................................................................45
Activity: ...............................................................................................................................................................46
UNIT 5 ................................................................................................................................................................ 47
CO - OWNERSHIP – CONCURRENT INTERESTS IN LAND ............................................................................................47
Introduction ........................................................................................................................................................47
Learning Outcomes:............................................................................................................................................47
Co-ownership (Concurrent Interests in Land) ....................................................................................................47
Types of Co-ownership .......................................................................................................................................47
Joint Tenancy ......................................................................................................................................................47
The Right of Survivorship (Jus Accrescendi) ......................................................................................................48
The Four Unities .................................................................................................................................................48
Unity of Possession .............................................................................................................................................48
The Unity of Interest ...........................................................................................................................................48
Tenancy in Common ...........................................................................................................................................48
Unit Summary .....................................................................................................................................................49
Activity: ...............................................................................................................................................................49
UNIT 6 ................................................................................................................................................................ 51
LEASES AND LICENSES .............................................................................................................................................51
Introduction ........................................................................................................................................................51
Learning Outcomes:............................................................................................................................................51
Lease and Licenses .............................................................................................................................................51
The Essential Characteristics of a Lease ............................................................................................................51
Certainty of Duration ..........................................................................................................................................51
Types of Leases (Tenancies) ...............................................................................................................................52
Tenancy at Will ...................................................................................................................................................52
Tenancy at sufferance .........................................................................................................................................53
Periodic Tenancy ................................................................................................................................................53
Repair and Fitness for Habitation ......................................................................................................................54
Implied Obligations and Rights of a Tenant .......................................................................................................54
Contractual Licence ............................................................................................................................................55
Licences Protected By Estoppel ..........................................................................................................................56
Unit Summary: ....................................................................................................................................................57
Activity: ...............................................................................................................................................................57
UNIT 8 ................................................................................................................................................................ 58
MORTGAGES ............................................................................................................................................................58
Introduction ........................................................................................................................................................58
Mortgage.............................................................................................................................................................58
Nature of a Mortgage as a Contract and as an Interest in Land ........................................................................58
4
Types of Mortgages .............................................................................................................................................58
Legal Mortgage...................................................................................................................................................59
Equitable Mortgage ............................................................................................................................................59
Rights of the Mortgagor ......................................................................................................................................59
The Contractual Right to Redeem .......................................................................................................................59
The Equitable Right to Redeem ...........................................................................................................................59
The Equity of Redemption ...................................................................................................................................60
Exclusion of the Right to Redeem .......................................................................................................................60
Right to Foreclose ...............................................................................................................................................61
Right to Take Possession ....................................................................................................................................61
Right to Appoint a Receiver ................................................................................................................................61
Unit Summary: ....................................................................................................................................................61
Activity: ...............................................................................................................................................................61
UNIT 9 ................................................................................................................................................................ 62
THE AFRICAN CONCEPT OF LAND OWNERSHIP ........................................................................................................62
Introduction ........................................................................................................................................................62
Meaning of Land Tenure .....................................................................................................................................62
Direct Acquisition of Customary Land ...............................................................................................................62
Transmission and Succession: Inheritance .........................................................................................................63
Reaction to Colonial Views .................................................................................................................................63
Unit summary ......................................................................................................................................................65
Activity ................................................................................................................................................................65
UNIT 10 .............................................................................................................................................................. 66
COMPULSORY ACQUISITION OF PROPERTY IN ..........................................................................................................66
ZAMBIA....................................................................................................................................................................66
Introduction ........................................................................................................................................................66
The Power of Eminent Domain ...........................................................................................................................66
The Public Lands Acquisition Ordinance ...........................................................................................................66
The 1969 Referendum .........................................................................................................................................67
The Land Acquisition Act, 1970 ..........................................................................................................................68
Salient Provisions of the Act ...............................................................................................................................69
Unit summary ......................................................................................................................................................69
Activity ................................................................................................................................................................70
5
Study skills
Distance learning is different from full time studying and therefore your approach will be
different. You will need to allocate enough time to study the material and decide on what to
study. Keep in mind that you will be your own monitor and hence need self-discipline. You can
find other resources on study skills available on the web and we recommend a few links for you:
http://www.how-to-study.com/
http://www.ucc.vt.edu/stdysk/stdyhlp.html
You can also go to www.google.com and type “self-study basics”
6
Need help?
If you face any difficulties as you study this module, contact
The Director,
The Institute of Distance Education,
University of Zambia
P.O Box 32379
Lusaka, Zambia
Email: director-ide@unza.zm
Website: www.unza.zm
7
Land Law Course Outline
COURSE AIM:
To impart knowledge on land tenure resolving of land disputes and advise on the acquisition of
land
LEARNING OUTCOME: On completion of the course the students should be able to:
1. Apply knowledge on ownership and land tenure.
2. Resolve practical land disputes in society and further advice on how land can be
acquired.
3. Demonstrate an understanding of land policy, laws governing tenure, tenancy, leases, role
of the landlord and tenant.
UNIT 1: INTRODUCTION TO LAND LAW
1.0 Definition of Land
1.2 Sources of land law in Zambia
1.2.1 Statutes enacted by the Zambian legislature,
1.2.2 English Common Law,
1.2.3 Principles of Equity,
1.2.4 Customary law,
1.2.5. English Statutes applicable to Zambia by virtue of the English Law (Extent of Application)
Act and the British Acts Extension Act,
1.2.6 Judicial Precedents and
1.2.7 Writings of eminent authors.
UNIT 2: HISTORICAL BACKGROUND OF LAND TENURE SYSTEM IN ZAMBIA
2.0 Outline the pre and post-Independence land policy in Zambia;
2.1 Demonstrate an understanding of the One Party State land policy;
2.2 Outline the recent land policy development.
2.3 Outline the types of tenure and the meaning of tenure.
UNIT 3: OWNERSHIP OF LAND AND ITS LIMITATIONS
3.1 The meaning of ownership in relation to land;
3.2 State the two types of Limitations to land ownership
3.3 Clearly differentiate between statutory limitations and common law limitations.
UNIT FOUR: FIXTURES AND FITTINGS
4.1 Distinction between a fixture and a fitting,
4.2 Identify the two tests applied in determining a fixture,
4.3 Express an understanding of the common law exceptions to fixtures
8
UNIT 5: CO - OWNERSHIP – CONCURRENT INTERESTS IN LAND
5.0 Iintroduction
5.1 Types of Co – Ownership
5.1.1 Joint Tenancy
5.1.2 The Right of Survivorship (Jus Accrescendi)
5.1.3 The Four Unities
5.1.3.1 Unity of Possession
5.1.3.2 The Unity of Interest
5.1.3.3 The Unity of Title
5.1.3.4 The Unity of Time
5.2 Tenancy in Common
5.3 Co-Parcenary and Tenancy by Entireties
5.4 Provisions of the Lands and Deeds Registry Relating to Co-Ownership
UNIT 6 LEASES AND LICENSES
6.0 Introduction
6.1 The Essential Characteristics of a Lease
6.1.1 Certainty of Duration
6.1.2 Exclusive Possession
6.2 Types of Tenancies
6.2.1 Tenancy at will
6.2.2 Tenancy at Sufferance
6.2.3 Periodic Tenancy
6.2.4 A Lease or Tenancy for a Fixed Period
6.2.5 Tenancy by Estoppel
6.3 Implied Obligation of Landlord and Tenant
6.3.1 Covenant for Quite Enjoyment
6.3.2 Not to Derogate From the Grant
6.3.3 Repair and Fitness for Habitation
6.4 Implied Obligations and Rights of a Tenant
6.5 Landlord and Tenant’s Remedies for breach of Covenants
6.6 Licences
6.6.1 Bare Licence
6.6.2 Contractual Licence
UNIT 7 EASEMENTS AND PROFITS
7.0 Introduction
7.1 The Nature of Easements is Interests in Land
7.2 The Essential Characteristics of an Easement
7.2.1 There must be a Dominant and Servient Tenement
7.2.2 The Dominant and Servient Tenement must not be Owned and occupied by the same
person
7.2.3 The Easement must Accommodate (Benefit) the Dominant Tenement
7.2.4 The Easement must be Capable of Forming the Subject Matter of the grant
9
7.3 Acquisition of Easements and Profits
7.3.1 Express Grant or Reservation
7.3.2 Statute
7.3.3 Presumed Grant or Prescription
7.3.3.1 The Prescription Act
7.4 Recording of Memorial of Easement in a Certificate of Title
UNIT 8 MORTGAGES
8.0 Introduction
8.1 The Nature of a Mortgage as a Contract and as an Interest in Land
8.2 Types of Mortgages
8.2.1 Legal Mortgage
8.2.2 Equitable Mortgage
8.3 The Rights of the Mortgagor
8.3.1 The Contractual Right to Redeem
8.3.2 The Equitable Right to Redeem
8.3.3 The Equity of Redemption
8.3.5 Rights of Mortgagee
8.3.6 Sale
8.3.7 Foreclosure
8.3.8 Possession
8.3.9 Appointment of Receiver
8.3.10 to Sue for Money after the Date Fixed For Payment
8.4 Discharge of Mortgages
Unit 9: The African Concept of Land Ownership
9.1 Meaning of Land Tenure
9.2.1 Direct Acquisition of Customary Land
9.2.2 Transmission and Succession: Inheritance
9.3 Colonial Views on the Nature of Interests and Rights under African
9.4 Customary Holding or Tenure
9.5 Positions of Chiefs under African Customary Tenure
UNIT 10: COMPULSORY ACQUISITION OF PROPERTY IN ZAMBIA
10.1 Introduction
10.2 Brief Historical Background to Compulsory Acquisition of Property in Zambia
10.3 The 1969 Referendum
10.4 Constitutional Basis for Compulsory Acquisition of Property in Zambia
10.5 The Land Acquisition Act, 1970
10.5.1 Salient Provisions of the Act
Method of Teaching
LECTURES: 10 HOURS RESIDENTIAL CLASS FOR ONE WEEK
ASSESSMENT:
Student performance assessment shall comprise of:
10
a) Continuous Assessment 30%:
 2 Written assignment 20%
 1 Take home test 10%
b) Final Examination 70%
Required Readings
1. Glias, T. O. (1966), African Customary Law, Manchester University Press
2. Gray, K.J.,(2005) Elements of Land Law, Oxford, New York
3. The Lands Act, CAP.184 of the Laws of the Republic of Zambia, Lusaka,
4. The Lands and Deeds Registry Act CAP.185 of the Laws of the Republic of Zambia
Recommended Readings
5. Hayton, D. H. (1982), Megary’s Manual of the Law of Real Property, 6th Ed., London
6. Land Acquisition Act CAP.185 of the Laws of the Republic of Zambia
7. Mvunga, M. P. (1982 ) Land Law and Policy in Zambia, Zambian Paper No. 17
8. Riddall, J. G. (1988), Land Law, 4th Ed., London, Butterworths
9. Zambia Land Alliance(2005) Communities' views on the land policy: draft land
policy review consultation process in Zambia,Lusaka,Zambia Land Alliance
11
UNIT 1
Land Law
Introduction
This unit provides the definition of land law and the sources of land law. It also
introduces the student to concepts of land law.
Learning Outcomes
After completing this Unit, a student should be able to:
i. Cite what land is;
ii. Demonstrate an understanding of what land law is;
iii. Outline the sources of land law in Zambia.
Definition of Land
From the legal point of view, land means not only the ground but also the subsoil and all
structures and objects such as buildings, trees and minerals standing or lying beneath it.
This concept of land is often expressed in the Latin maxim ‘quic quid plantatur solo, solo
cedit,’ which means, (whatever is annexed to the land becomes part of the land). Broadly
speaking, the law of real property (or Land Law) is essentially concerned with ownership
of land.
Broadly speaking, the law of real property (or land law) is essentially concerned with
ownership of land. Land law may be defined as that branch of law which deals with and
regulates man’s rights and duties to land and the interest which may be acquired and
liabilities which may accrue to man inter se, in relation to the use of land1. According to
Dixon, the law of real property is obviously concerned with land, rights in or over land
and the processes whereby those rights and interests are created and transferred.2 Riddal
has observed that land law is concerned, first, with various aspects of ownership of land
and, secondly, with interests in land, and particularly, with the question whether such
interests in land are binding on a subsequent holder of the land.3
1
Okon. E “Land Law As An Instrument of Social Change”, ZAMBIA LAW JOURNAL, Volume 17, 1985,
p46.
2
Dixon, M, land law, Cavendish Publishing Limited, London, 1994, P.1.
3
Riddal, J.G, introduction to land law, 4th Ed, Butterworths, London, 1988, p.3.
12
From the various definitions given above, it comes out clearly that one sphere or aspect
of land law is concerned with interests in land. These interests are rights in land held by
persons other than the owner. There are various forms of interests or rights in land that
can be held by persons other than the owner. These interests include leases, mortgages,
easements and profits. The law relating to the various forms of interests in land held by
persons other than the owner is discussed in various chapters in this book.
With regard to liability, a land owner may be liable in tort if he or she interferes with the
legal rights of others.
The term ‘real property’ is derived from the old remedy for dispossession of land.
Originally, real property was the term applied to any property that was the subject matter
of a real action in the common law courts. This applied only to freehold interests in land
and was not available to actions relating to leaseholds. The person wrongfully
dispossessed of his land could bring a real action i.e claiming the land; in other words the
thing (res) itself. On the other hand, a person who was wrongfully dispossessed of his
goods or chattels could only bring an action for damages against the person of the wrong
doer. The consequence of a personal action, for instance, for dispossession, was that the
wrongful dispossessor could either hand back the personal property or pay compensation,
whereas with a real action, if a freeholder had been dispossessed wrongly, then
possession of the property had to be handed back. In consequence, a distinction was
made between real property (or “realty”), which could be specifically recovered and
personal property or “personalty” which could not.4
It must be pointed out from the outset that even if we have spoken of an owner of land or
ownership of land, “there is, in fact, no such thing as ‘ownership’ of land in an absolute
sense or at any rate.”5 In England, according to the doctrine of tenure, all land is owned
by the crown and a subject can merely hold land either directly or indirectly of the crown
on one or other various forms of tenures. The doctrine of tenure is discussed under
section 1.3.1 of this chapter. In Zambia all land is vested in the President who holds it in
perpetuity for and on behalf of all the people of Zambia.6 What a person can therefore
4
See generally Megarry and Wade, the law of real property, 4 th ed, Sweet and Maxwell, London, 2000,
p.5.
5
Riddal,J.G, supra note 3 at p.5.
6
See Section 3 of the Lands Act, Chapter 184 of the Laws of Zambia.
13
‘own’ both in England and Zambia is merely an estate or interest in land of a defined
duration.
The learned authors of Megarry’s Manual of The law of Real Property have observed that
the objects of learning the Law of Real Property are:-
(a) to acquire a knowledge of the rights and liabilities attached to

interests in land; and
(b) to lay a foundation for the study of conveyancing.7

Conveyancing is concerned with how rights in land may be created and transferred. Land
law principally deals with the rights and liabilities of land owners. Conveyancing may be
defined as a science and art of validly creating, transferring, and extinguishing rights in
property, particularly in or over land, by written deeds of various kinds. It is accordingly
a major branch of legal work and lawyer’s business. Conveyancing is based on the
knowledge of what rights can exist in or over particular kinds of property, of what ends
can be secured within the existing rules of law, and of what machinery, such as a vesting
order, can appropriately be employed to achieve particular ends. It includes investigation
of title and preparation of agreements and other instruments which operate as
conveyances.8
According to Dixon, the law of real property is obviously concerned with land, rights in
or over land and the processes whereby those rights and interests are created and
transferred. From the various definitions given above, it comes out clearly that one sphere
or aspect of land is concerned with interest in land. These interests are rights in land held
by persons other than the owner. There are various forms of interest s or rights in land
that can be held by persons other than the owner. These interests include leases,
mortgages, easements and profits. A land owner may be liable in tort if he or she
interferes with the legal rights of others.
Sources of land law in Zambia

The sources of Land Law in Zambia include;
i. Statutes enacted by the Zambian legislature,
ii. English Common Law,
iii. Principles of Equity,
iv. Customary law,
v. English Statutes applicable to Zambia by virtue of the English Law (Extent of
Application) Act and the British Acts Extension Act,
vi. Judicial Precedents and
7
Hayton, D, megarry’s manual of the law of real property, 6th ed, ELBS, London, 1982, p.1.
8
Walker, D,M, the oxford companion to law, Claredon press, Oxford, 1980, p.287.
14
vii. Writings of eminent authors.
Statutes Enacted by the Zambian Legislature

The Constitution of Zambia is the supreme law of the land. All laws in Zambia are
subject to the Constitution. Any law that contravenes or is inconsistent with the
Constitution is null and void. In terms of property rights under the Constitution, Article
16 provides for protection against deprivation of property. This Article may be resorted to
in the case where there is a challenge to the President’s powers to, for instance,
compulsorily acquires property under the Lands Acquisition. There are a number of
statutes enacted by the Zambian legislature which deal with specific areas or aspects of
land law. The statutes in question include; the Lands Act (Cap 184), the Lands and Deeds
Registry Act (Cap 185), the Land (Perpetual Succession) Act (Cap 186), the Agricultural
Lands Act (Cap 187), the Land Survey Act (Cap 188), the Lands Acquisition Act (Cap
189), the Landlord and Tenant (Business Premises) Act (Cap 193), the Housing
(Statutory and Improvement Areas) Act (Cap 194), the Water Act (Cap 198), the Rent
Act (Cap 206), the Common Leasehold Schemes Act (Cap 208), the Town and Country
Planning Act (Cap 283) and the Trust Restriction Act (Cap 63)
English Common Law

The English Law (Extent of Application) Act (whose object, as per its preamble, is to
declare the extent to which the law of England apply to Zambia), provides for application
of English Common law, doctrines of Equity and certain English Statutes.
Principles of Equity
Equity may be defined as that body of the law or principles that was developed and
applied in the court of chancery in England, in order to mitigate the harshness of the
common law. Certain rights could be enforced in the common law courts and these where
known as legal rights. Some rights where not protected by the court of chancery if it
deemed it equitable to do so. These rights where known as equitable rights. By the
Judicature Act of 1873, the Courts of Law and Equity where fussed into one Supreme
Court divided into a High Court and Court of Appeal. In spite of the fusion of Courts of
Law and Equity, Law and Equity have still remained distant. It has been observed that it
was in the realms of property law that equity made its greatest contribution.
Customary Law
The law that existed in Zambia before the advent of colonialism was the (unwritten)
indigenous law of the tribes. This is generally referred to as Customary Law. Customary
Law has no uniform application in Zambia, but varies from tribe to tribe or locality to
locality. Customary Law may be resorted to in the settlement of disputes involving
members of the tribe. As regards Land Law, Customary Law as a source of law still plays
a vital role in the settlement of land disputes that may arise under land held under
Customary Law Tenure. The law that generally governs customary tenure in Zambia is
the customary land law of the area or district where the land is situate. The Lands Act
recognizes customary land law in a number of provisions or sections, i.e. Section 3 (4),
and section 4 (1). Customary Law is recognized as applicable to the country by virtue of
15
Section 16 of the Subordinate Court Act, provided that such Customary Law is not
repugnant to justice, equity or good conscience and is not incompatible, either in terms or
by necessary implication, with any written law in Zambia. The Local Courts Act (Cap 29)
in section 12 does also recognize the application of customary law to any matter before it,
in so far as such law is not repugnant to natural justice or morality or incompatible with
the provisions of any written law. English Statutes Applicable to Zambia by Virtual of
the English Law (Extent of Application) Act the Act is unhelpful as to which pre-1911
English statutes are applicable to Zambia. Be that as it may, in terms of Land Law in
Zambia, the statute of Frauds 1677, the Convincing and Law of Property Act 1881-1911,
the Distress for Rent Act, 1689, the Law of Distress Amendment Act, 1888, are some of
the well-known pre-1911 English Statutes that are applicable to the republic. In The
People v. Shamwana and Others (1982) ZR 122, the High Court (Chirwa J, as he then
was) held, inter alia, that the English law (Extent of Application) Act is an enabling Act
in that in the absence of any legislation in Zambia on any subject, English Statutes passed
before 17th August, 1911 will apply in Zambia.
English Statutes Applicable to Zambia by virtual of the British Acts Extension

Act
The preamble to the British Acts Extension Act provides that it is: An Act to provide for
the extension or application of certain British Acts to Zambia, and to provide for
amendments to certain British Acts in their application to Zambia. Section 2 of the Act
provides that the Acts of the Parliament of the United Kingdom set forth in the schedule
thereto shall be deemed to be of full force and effect within Zambia. The British Acts set
forth in the schedule under the Act and which apply to Zambia are; The Conveyancing
Act, 1911, The Forgery Act, 1913, The Industrial and Provident Societies (Amendment)
Act, 1913, The Larceny Act, 1916, The Bills of Exchange (Time of Noting) Act, 1920,
The Married Women (Maintenance) Act, 1920, The Gaming Act, 1922, The Industrial
and Provident Societies (Amendment) Act, 1928, The Limitation Act, 1939 and the Law
Reform (Enforcement of Contracts) Act, 1954. The only statutes from the ones listed
above that may have direct relevance to land law are the Conveyancing Act, 1911 and the
Limitation Act of 1939. Section 4 of the English Limitation Act provides for the period of
limitation in terms of an action for recovery of land.
Judicial Precedent
Like most other countries formerly tied to England as colonies or protectorates, Zambia is
recognized as a Common Law Jurisdiction. The Common Law System is based on the
doctrine of Judicial Precedent or Stare decisis. The doctrine of judicial precedent simply
means that the courts do adhere or follow their past judicial decisions. Through the
system of binding precedents, the courts become a source of law in that in their
interpretation of the statutes or laws they create binding judicial precedents. Under the
common law system, the lower courts are bound by the decisions of higher courts. The
importance of stare decisis to a hierarchical court system was stated by the Supreme
Court in the case of Kasote v. The People (1977) ZR 75.
16
Writings of Eminent Authors
Textbooks may also be recognized as sources of Land Law. For example; Megarry’s
Manual of the Law of Real Property has been and is widely cited and relied on by both
the legal practitioners and the courts not only in England but also in Zambia
Summary
Land law deals with rights and liabilities of land owners. It is concerned with land, rights
in or over land and the processes whereby those rights and interests are created and
transferred. These interests are rights in land held by persons other than the owner.
Examples of these proprietary interests in land include leases, mortgages, easements and
profits. These proprietary interests in land are capable of binding or affecting other
people not simply the parties to the contract. In other words, land law rights are capable
of attaching to the land itself so that any person who comes into ownership or possession
of the land may be entitled to enjoy the rights it gives or be subject to the obligations it
imposes. One way of describing what land law is all about is to state that it is the study of
the creation and operation of proprietary rights which become part of the land and not
personal to the parties that created them.
There are a number of sources of land law in Zambia. These include a host of statutes
enacted by the Zambian legislature that deal with specific areas of land law. The English
common law and doctrines of equity including the statutes which were in force in
England on the 17th August 1911 (being the commencement of the Northern Rhodesia
Order in Council 1911), customary law, judicial precedent and text books are also a
source of land law.
17
UNIT 2
Historical Background of Land Tenure System in Zambia
Introduction
This unit provides for Zambia’s Pre and Post-Independence land policy. It also looks at
the land policy under the One Party State and the recent policy development. The unit
will also look at the meaning of tenure and the types of tenure.
Learning Outcomes
i. Outline the pre and post-Independence land policy in Zambia;
ii. Demonstrate an understanding of the One Party State land policy;
iii. Outline the recent land policy development.
iv. Outline the types of tenure and the meaning of tenure.
Pre and Post-Independence Land Policy in Zambia

Following the termination of the BSA Co.’s mandate to administer the Territory in 1924,
Sir Herbert Stanley was appointed first Governor of the territory. Sir Herbert Stanley had
a policy of land reservation which was approved by the colonial office. Shortly after the
1924 Order in Council came into operation, a Native Reserves Commission East
Luangwa (now Eastern Province) 1924 – 1925, was appointed to inquire into what land
could be set aside for African occupation in Fort Jameson (Chipata) and Petauke
Districts. The Northern Rhodesia (Crown Lands and Native Reserves) Order in Council
1928 gave effect to the Recommendations of the Native Reserves Commission. By the
order in Council, land (other than land in Barotseland and three freehold areas vested in
the Company) was divided into Crown lands and Native Reserves. The effect of creating
reserves was that land not so reserved and outside reserves became Crown land. The
indigenous people were not to be able to enjoy customary land rights over Crown rights.
The natives were removed from Crown lands and consigned to Native Reserves. As to
the conditions of non-native tenure in the settled areas along the main railway line from
Livingstone to Ndola, farms were granted under freehold title, subject to a preliminary
leasehold period of five years during which personal occupation was obligatory and a
certain minimum amount of development was to be carried out. The policy of
establishing native reserves was an attempt to implement the principle laid down by the
British Government in 1900 (under the Northern Eastern Rhodesia Order in Council of
1900) that sufficient land should, from time to time, be assigned in Northern Rhodesia for
native occupation. But the policy when put into practice did not prove to be satisfactory.
Many native communities objected to being removed from Crown lands, and many
European farmers found themselves unable to obtain labour. Native Reserves were vested
18
in the Secretary of State and set apart in perpetuity for the sole and exclusive use and
occupation of the Natives. The Governor was required to assign land within each Native
reserve to Africans, ‘whether as tribes or portions of tribes.’ The Governor was also
empowered to make grants of land or interests in land in the Native Reserves to non-
native individuals for a period not exceeding five years. African customary law regulated
tenure in the reserves. English Law regulated the interests in Crown land. The interests
created in the crown land where those known to English law. The two types of interests
that existed in Crown land were freehold estates and leasehold estates. As a result of the
1928 Order in Council two types of tenure were created, namely, statutory tenure in the
Crown land and customary tenure in the native reserves. This was the genesis of the
country’s dual land tenure system that we have today. The 1928 Order in Council was
supplemented in 1929 by the Northern Rhodesia (Native Reserves) Supplementary Order
in Council 1929 which set aside additional areas as Native Reserves. The Northern
Rhodesia Crown Lands and Native Reserves (Tanganyika District) Order in Council
1929 set aside as Native Reserves the three Freehold areas vested in the British South
African Company (BSA Co.)
Policy under the One Party State 1964 – 1972

At independence, Zambia retained both the Colonial categorisation of land and the dual
land tenure system. On 24th November, 1964, Government appointed a Cabinet Land
Policy Committee. The reason Government decided to appoint a Cabinet Committee and
a Commission was because previous commissions were only concerned with certain
aspects of land policy and none of them looked into the question of land in the territory as
a whole. As to timing of the appointment of the Cabinet and Commission this had to be
after independence when an African government with the interests of the majority was in
power. The Land Commission was assisted by a Provincial land working policy
committee which was set up by Government in all provinces except Western Province.
The report of the Land Commission was ready in August 1967. Problems Created by
Absent Landlords After independence, the country experienced a flight of white settlers
who abandoned and left their large tracts of land unutilized and/or undeveloped. The
Government could not legally acquire the land due to the Constitutional provision under
Section 18 of the Independence Constitution which provided for the protection against
deprivation of property. The independence Constitution had an entrenched bill of rights.
There was need for a referendum to amend Section 18 of the Constitution. The year 1969
witnessed the national campaign for a referendum to amend section 18 of the
Constitution to give or pave way to compulsory acquisition of undeveloped and
unutilised land owned mainly by absentee landlords. The majority of the voters were in
favour of amending the constitution. The amendment of the Constitution resulted into the
enactment of the Lands Acquisition Act in 1970, which was the law enacted to address
the problem created by the absent landlords.
19
The Western Province (Miscellaneous Provisions) Act, 1970
In matters relating to land, Barotseland was not affected by the Orders in Council. The
Litunga and his Council had powers in all matters relating to land in Barotseland. On the
18th May, 1964, an agreement known as the Barotseland Agreement 1964 was entered
into between the Government of the Republic of Zambia and the Litunga of Barotseland
to retain the arrangements or status quo with regard to the land issue in the independent
and unitary state of Zambia which was born on 24th October, 1964. Under the agreement
the Litunga and his Council were charged with responsibility for administering Barotse
customary land within Barotseland. The status quo as per the agreement continued until
1970 when by virtue of the Western Province (Miscellaneous Provisions) Act (Cap 297)
all land in the Western Province was declared to be a reserve within the meaning of and
under the Zambian (State lands and Reserves) Orders, 1928 to 1964 and vested in the
President of Zambia like all reserves in the country. The enactment of this statute was
preceded by the constitutional amendment of 1969 which abrogated the Barotseland
Agreement. The three categories of land continued to be in existence until 1995, when by
virtue of the Lands Act of 1995, the Zambia (State land and Reserves) Orders in Council,
1928 to 1964 and the Zambia (Trust land) Orders 1947 to 1964, inter alia, were repealed
and reserves and Trust land were merged into one and became known as Customary area.
Land Reforms in the Second Republic

At independence, Zambia retained both the colonial categorization of land, and the two
regimes of land tenure, namely, statutory and customary tenures. One of the major land
policy changes in
Zambia after independence was brought about by the Land (Conversion of Titles) Act
which has been already discussed in Unit Four of this module. The land policy changes
under the One Party State were largely influenced by the UNIP’s socialist ideology, the
Philosophy of Humanism and President Kaunda’s perception of African traditional
conception of land ownership. Recent Policy Development (Land Reforms in the Third
Republic) The land reforms in the third republic were influenced by the Movement for
Multiparty Democracy (MMD) Government’s liberal economic policy. In its campaign
manifesto of 1990, the MMD promised to liberalise not only the economy but also the
land tenure system once in office. The MMD promised to institute a review of the
customary system of tenure, while at the same time facilitating the emergency of the
private land market. The MMD government in 1994 presented a Lands Bill in the
National Assembly which was withdrawn after its opposition by opposition political
parties, traditional rulers and some NGOs in order to facilitate more consultation. The
Lands Bill was about a year later in August 1995, again presented to the National
Assembly. The introduction of this Act was meant to deal with the problems brought
about mainly by the 1975 Land (Conversion of Titles) Act. Some of the land policy
changes introduced by the Act include conversion of customary tenure into leasehold
tenure, mandatory renewal of leases upon expiry, re-entry, the land development fund
and the lands tribunal which was meant to help settle land disputes. The 1995 Lands Act
introduced a radical definition of land which include whether bare or virgin land has
20
value by itself without having regard to human labour or capital expended on it. The
notion under the 1975 Act that bare land had no value has been discarded.
The Doctrine of Tenure

The word Tenure, from the Latin word tenere (to hold) implies that land is ‘held’ under
certain conditions. From the time of the Norman Conquest in 1066 English Land Law
adopted the continental system of feudalism i.e. hierarchy dominated by a sovereign or
chief and based on mutual promises of protection and military service. From the time of
the Norman conquest, the theory of the common law developed that all land in England
was held of the crown and that subjects may hold land directly or indirectly of the crown.
According to the Doctrine of Tenure all land in England is held of the crown either
directly or indirectly on one or other of the various tenures. Tenure depended for its form
on the particular services owed by the tenant.
Tenure is concerned with the condition upon which land is held; it answers the question;
how is land held? Today, all land is held of the state directly or indirectly. Estate is
concerned with the length of time for which a tenant may hold land; it answers the
question: for how long is land held?
Estates at common law
Estate of freehold (estate whose period Estate less than freehold (period of duration
of duration is fixed but not certain is certain e.g. lease
Freeholds capable of inheritance (e.g.

estate in free simple Freeholds not capable of inheritance (e.g.
estate of life
Tenure existed in the following modes at the time of Edward 1:
Free Tenure
These consisted of Knight Service, Serjeanties, Spiritual Tenure, and Free Socage. These
services were considered to be rendered freely.
Unfree Tenure or Copyholds

These where types of villain tenure and involved services of a service nature.
21
Customary Tenure
Examples of these were gavel kind and borough English. The important form of free
tenure under feudalism was knight service. It was based on military service in return for
the grant of land. The tenants in chief were required in return for land to serve the
sovereign. This service included the provision of armed horsemen
Is There an Equivalent of the Doctrine of Tenure Under Customary Tenure in
Zambia?
It has been observed under section 1.3.1 above, dealing with the doctrine of tenures, that
in return for the grant of land by the crown, the subject had to perform certain services. In
other words, the performance of the services to the crown or overlords was a condition
upon which the land was held. A question that may be posed here is whether under
African customary tenure in Zambia, there is any equivalent or similarity to the position,
or situation that obtained during the medieval period in England.
It is now generally agreed that chiefs under customary tenure have no allodia ownership
of land similar to the crown in England.9 Though sometimes loosely referred to as owners
of land, chiefs in Zambia merely exercise control functions over land. A question that
may be posed here is whether or not subjects are expected to perform or render certain
services to their chiefs as a condition for the grant and continued holding of the land.
According to a research carried out on behalf of the Catholic Commission for Justice and
Peace [C.C.J.P],10 it was found that in some parts of the Copperbelt and Luapula
provinces of Zambia the subjects had to provide or perform certain services to their
chiefs, including payment of money, as a condition for the grant and continued ownership
and holding of the land. For instance, under senior chief Mushili’s area in Ndola rural the
subjects bitterly complained of the practice of paying farm produce and/or money every
year (usually after harvest) to their senior chief. ‘When the chief is on tour we are
required to pay K15, 000 and a tin of maize, is it in order? One person in Kanonge area
under Chief Mushili commented, ‘When you don’t take something to the Chief you are
chased from the land,” another man pointed out.11 Another person at Mishikishi
lamented, ‘I did not pay loyalties in 2001, because I did not have food or money and I
told the Sulutani [village headman], but after sometime he came to insult me and told me
9
See generally Chapter 20 of this book dealing with the African Concept of land tenure.
10
Catholic Commission For Justice and Peace, "The Impact of the Lands Act 1995 on the livelihoods of the
poor and peasants in Zambia,” February, 2003. The author was part of the core research team.
11
Ibid.
22
to move away from the house and land where I had a farm……right now I don’t have a
place to stay or farm.12’ After some probing questions from the author, it transpired that
the gentleman was a ‘settler’ having originated from Eastern Province of Zambia and
found the practice of paying ‘royalties’ to the senior Chief unpalatable and unacceptable
to him.
The C.C.J.P report generally observes in relation to the places visited in chief Mushili’s
area that people, especially the ‘settlers’ or ‘non locals’ lived in constant fear of losing
their land and most of them preferred to have title deeds through converting their interest
in customary land into leasehold. In chiefs Mabumba and Chimense’s areas of Mansa
district in the Luapula Province, the practice of paying some form of royalties was similar
as that observed in senior chief Mushili’s area.
In chief Mabumba’s area one person lamented:-
There is corruption in the allocation of land here, because for you to be allocated land by
the chief, you need to pay K20, 000- K25, 000, a bag of mealie meal, and two chickens. If
you don’t pay those things, then you are chased away from the land. We want the system
to change because us with title deeds pay double. 13
The case excepted below demonstrates the role of traditional authority in the allocation of
land in the Western Province of Zambia. Its interesting aspect, in relation to the doctrine
of tenure discussed above, is the making of obeisance (Kushowelela) to the Litunga, as
some form of condition for the grant of land. The case also illustrates customary law as a
source of law.
CASE LAW
Mukelebai v Widmaier Supreme Court Appeal No. 116 of 1995 [Unreported]
[The facts of the case appear from the Judgment of the Supreme Court delivered by
Ngulube, CJ, as he then was]
For convenience, we will refer to the parties by their designations at the trial; the
appellant as the plaintiff and the respondent as the defendant. The plaintiff brought
proceedings against the defendant in which he asked the court to nullify the grant of a
piece of land in Mongu to the defendant by the Lozi Royal Establishment and to order
cancellation of a certificate of title issued to the defendant in respect of the same land by
the Commissioner of Lands. The plaintiff claimed that the piece of land granted to the
12
Ibid.
13
ibid p31.
23
defendant was in fact an integral part of a ten acre plot of land which had already been
granted to him in 1975. He had gone through all the necessary procedures under Lozi
custom, culminating in making obeisance (Ku Showelela) to the Litunga. He said he had
applied for a Certificate of title to part only of this piece of land to facilitate borrowing,
leaving the rest or the plot unsurveyed and available should a lender take away the piece
with the Certificate of title. The plaintiff further claimed that it was contrary to the law
applicable at the time, that is, the Zambia (State Lands and Reserves) orders 1928 - 1964
to grant land in a Reserve to a non-native inhabitant. Another point raised (which it
transpired was infact common ground) was that under Lozi customary law, land granted
to a subject by one Litunga cannot be taken away by a subsequent Litunga.
The defendant's case was that being desirous of procuring land on which to construct
workers' houses for his carpentry and joinery business, he too went through all the
requisite procedures starting with an approach to the area chief and culminating with a
certificate of title with the blessings and consent of all the elevant traditional and State
authorities. At an early stage, the traditional authorities convened a meeting at the
affected site with all the neighbours: the plaintiff attended and raised objection, claiming
the piece of land as his and he was contradicted by two Indunas sent from the Royal
Establishment who happened to have been present at the time when the plaintiffs’ own
piece of land was demarcated.
The plaintiff sued and lost in the traditional courts. He then launched these proceedings
and lost in the High Court. The learned trial Judge determined that the issues to be
resolved were whether the land given to the plaintiff by the Litunga in 1975 included the
disputed piece now occupied by the defendant; whether the present Litunga had not
wrongfully dispossessed the plaintiff, contrary to Lozi customary land law; whether the
plaintiff’s land was clearly delineated; whether the plaintiff had adduced sufficient
evidence to establish that the land now held by the defendant was part of the land given
to him by the Litunga in 1975; and whether it was contrary to law to grant land in a
reserve to the defendant, a German national. The learned trial Judge found against the
plaintiff who has appealed to this Court.
We heard elaborate arguments and submissions. We also received detailed written heads
of argument. In the view that we take, the point was not what the Lozi Customary law of
land acquisition is and about which there was no dispute as such. The true point was what
land had been given to the plaintiff and whether this included in extent the piece of land
subsequently given to the defendant. The learned trial Judge clearly recognized this. In
analysing the evidence, the Judge observed that both the Litunga and the area Chief
Libumbu who were involved in the grant to the plaintiff were deceased but that one at
least of the lndunas sent to demarcate the plaintiff's land was still alive and had attended
the meeting to demarcate the defendant's plot. This was Induna Inguu who contradicted
24
the plaintiff s claim at the meeting. The defendant had deposed in his evidence that there
were in fact two Indunas at the meeting who had also participated in the earlier exercise
of demarcating the plaintiff’s land. The Court observed that apart from his own word,
there was no one else and nothing else to support the plaintiff’s claim to the defendant's
land. The Judge concluded that the plaintiff had failed to satisfy the Court whether
verbally or by documents that the land given to him in 1975 by the late Litunga included
Lot 6020/m, now occupied by the defendant.
In the grounds of appeal and in the submissions and arguments, many issues were raised.
For example, the plaintiff criticized the Judge for expecting customary land to have
survey diagrams and beacons. But in fact, the learned trial Judge was commenting on the
plaintiffs own evidence that a Mr. Ilukui of the Mongu Rural Council had surveyed his
land. As Mr. Nchito submitted, the plaintiff cannot complain about a matter he himself
had talked about. Another complaint was that the Judge should not have required the
plaintiff to call corroborative evidence. The learned trial Judge in fact made observations
well within his rights when he pointed out, in effect, that the plaintiff’s claim rested
solely on his own say so and that neither the documents he had produced nor the witness
he called assisted his claim regarding the extent of his own land. There is nothing in the
judgment to suggest that the learned trial Judge had categorised the evidence of the
plaintiff as one would expect in a criminal trial - as falling within the classes which
require corroboration whether as a matter of law or as a matter of practice. Another
ground was that the current area Chief Libumbu, gave hearsay evidence on the extent of
the land. The learned trial Judge in fact had before him the evidence of the defendant that
a meeting was called which the plaintiff attended and where eye - witnesses to the first
demarcation were present to refute the plaintiffs claim. All these arguments were, in our
considered view, red herrings. The problem in fact reduced itself to sufficiency of proof,
or perhaps more accurately insufficiency of proof. In other words, the plaintiff failed to
prove his case on a balance. In truth, we have no pretext which we can use for reversing
the learned trial Judge's determination on the facts and evidence before him.
That leaves the legal objection based on the Orders in Council. Once the defendant is
adjudged - as happened - not to be occupying the plaintiffs land, the plaintiff hardly has
locus standi to complain about land that is not his. The Orders in Council while generally
restricting occupation by non-native inhabitants provided for exceptions in special cases
and with the consent and approval of all the relevant traditional and State authorities. The
learned trial Judge was satisfied that the defendant had the requisite permissions. The real
dispute concerned the grant and ownership of the land and whether the defendant's land
was not part of the plaintiffs land. To further discuss the technical and legal objection
based on the Orders in Council in Vacuo is decidedly otiose.
The appeal fails

25
Unit Summary
In this unit you have learnt about land policy changes in Zambia from pre and post-
independence times including during the One Party State and the recent policy
development. You have also learnt about land tenure and the types of tenure.
This unit has, inter alia, tried to outline or give a summary the two basic doctrines of
English land law; viz; the doctrines of tenure and estate. The word tenure derived from
the latin word tenere (to hold) implies that land is held under certain conditions. Tenure
refers to the rules, regulations and conditions upon which land is held. According to the
doctrine of tenure, all land in England is held of the Crown, either directly or indirectly
on one or other various forms of tenure. The doctrine of estates is concerned with the
length of time for which land is held. The doctrine provides that a subject cannot own
land (since it is owned by the Crown), but can merely own an estate or interest in it
authorizing him to hold it for some period of time. A subject may hold the land under fee
simple, for his life, (or life or lives of another or others) under fee tail or under leasehold.
Activity 2.0
i. Clearly discuss the land policy in Zambia from pre and post-independence times
to recent policy development.
ii. Briefly explain what is meant by land tenure
iii. List any two types of tenure and write brief notes on each one of them.
26
UNIT 3
Ownership of Land and Its Limitations
Introduction
In Zambia all land is vested absolutely in the President and is held by him in perpetuity
for and on behalf of the people of Zambia. Individuals occupying land, own estates,
rights and interests in land and not the land itself. They own rights to occupy and use the
land for a defined period of time. It is however usual in ordinary parlance or every day
speech to describe a person who has substantial rights in land as the owner of land.
Learning Outcomes
After completing this unit, a student should be able to:
i. Demonstrate an understanding of the meaning of ownership in relation to land;
ii. State the two types of Limitations to land ownership
iii. Clearly differentiate between statutory limitations and common law limitations.
The Concept of Ownership

According to Dias, ownership consists of an innumerable number of claims, liberties,
powers and immunities with regard to the thing owned. The right of ownership comprises
benefits and burdens. The former consists of claims, liberties, powers and immunities, but
the advantages these give is curtailed by duties, liabilities and disabilities. Sir Pollock has
defined ownership as the entirety of powers of use and disposal allowed by law.
According to Salmond, ownership in its most comprehensive signification denotes the
relation between a person and any right that is vested in him. That which a man owns in
this sense is in all cases a right. A person having ownership has the fullest group of rights
which a person can legally have in relation to things of that kind, including at least some
of the rights to occupy, possess, use, abuse, use up, let out, transfer in security, sell,
exchange, gift, bequeath and destroy. The rights of ownership may be vested in a single
person or in two or more persons either as joint tenants or owners, or as tenants in
common. Ownership may also be divided according to the time of its enjoyment whether
in possession or expectancy i.e. present or future.
Ownership at Common Law

At common law the owner or holder of the largest estate in land – the fee simple estate –
had extensive powers of control, disposition and use and enjoyment of land in which his
estate subsisted. In physical terms he may enjoy everything on, beneath and above the
land. The maxim is cujus est solum, ejus, est usque et ad inferos,’ [he who owns the soil
is presumed to own everything ‘up to the sky and down to the centre of the earth]. This
27
prima-facie includes all mines and minerals and any chattel not the property of any
known person which is found under or attached to the land.
Common Law Limitations or Restrictions on Ownership

Liability in Tort
In exercising rights over land a landowner must not interfere with the legal rights of
others.
Liability in tort may arise:
a. Where a nuisance is caused, e.g. smell or noise.
b. under the rule in Rylands vs. Fletcher (1868) LR HL 330 e.g. where water escapes
Gold and Silver

At common law Gold and Silver belong to the crown.
Treasure Trove
Treasure trove belongs to the crown at common law. A chattel or object may amount to a
treasure trove if:-
a. it consists of gold and silver;
b. it is hidden in or on the land deliberately and not merely lost; and
c. the true owner is unknown. (Attorney General vs. Trustees of British Museum (1903) 2
CH 598
Wild Animals
At common law, wild animals cannot form the subject matter of ownership. A land owner
has, however, a qualified right to catch, kill, and appropriate the animals on his land.
Water Rights
At common law a land owner has no property in water which flows or percolates through
his land in a defined channel. In respect to percolating water the owner of land is at
liberty to draw water without regard to the neighbouring owner. A riparian owner (the
owner of the land through which the water flows) is entitled to the flow of water through
his land unaltered in quantity and quality, subject to the ordinary use by the upper
riparian owners and he is bound by a corresponding obligation to the lower riparian
owners.
Air Space
At common law probably no action lay for trespass in respect of passage through the
airspace above the land in such circumstances as to involve no interference with the
reasonable use of it.
In Lord Bernstein of Leigh Vs. Sky Views and General Limited (1977) 2 ALL ER 902,
it was held that the rights of an owner of land in the air space above extended only to
such height above the land as was necessary for the ordinary use and enjoyment of the
land and the structures on it and above that height the owner had no greater rights in the
airspace than any other member of the public. In this case, since the defendant’s aircraft
had flown several hundred feet above ground and had not caused any interference with
any use to which the plaintiff put or could wish to put his land, the defendant had not
28
infringed such rights as the plaintiff had in the airspace and had not therefore committed,
a trespass. In the course of delivering his judgment Griffith, J observed and commented
thus:- I can find no support in authority for the view that a landowner’s rights in the air
space above his property extend to an unlimited height. In Wandsworth Board of Works
v United Telephone Co (1884) 13 QBD 904, Bowen LJ described the maxim, usque ad
coelum, as a fanciful phrase, to which I would add that if applied literally it is a fanciful
notion leading to the absurdity of a trespass at common law being committed by a
satellite every time it passes over a suburban garden.
Statutory Limitations on ‘Ownership’, Use and Enjoyment of Land in Zambia.

A number of statutes in Zambia have eroded away certain rights of an ‘owner’ of land at
common law. In relation to England, the learned authors of Megarry’s Manual on the
Law of Real Property have observed that the massive statutory innovation has overlaid
the traditional freedom to act with a complex network of restrictions. The learned authors
have further observed that the enactments were necessitated by the pressure of social and
economic forces working in the community. The statutory restrictions on ownership and
enjoyment of land in Zambia are discussed below.
Lands Act
Section 3 of the Lands Act (Cap 184) vests all land absolutely in the President who holds
it in perpetuity for and on behalf of the people of Zambia. All land in Zambia is
administered and controlled by the President for the use or common benefit direct or
indirect of the people of Zambia. The individuals occupying the land own estates, rights
and interests in land and not the land itself. That is, they own rights to occupy and use
land. It is, however, usual in everyday speech to describe a person who has substantial
rights in land as the owner of land.
Minerals –Lands Act and Mines and Minerals Act

Section 2 of Lands Act defines ‘land’ to mean “any interest in land whether the land is
virgin, bare or has improvements but does not include any mining rights as defined in the
Mines and Minerals Act”. Section 3 of the Mines and Minerals Act (Cap 213) provides
that the rights to all minerals in Zambia are vested in the President. Section 2 of the
Mines and Minerals Act defines a ‘mineral’ to mean:- any material substance, whether in
solid, liquid, or gaseous form, that occurs naturally in or beneath the surface of the
earth, but does not include water, petroleum or any substance or thing prescribed by the
Minister by regulation; It is clear from the definition of ‘land’ under section 2 of the
Lands Act as well as from subsections 1 and 2 of Section 3 of the Mines and Minerals
Act that ‘ownership’ of land does not mean or include ownership of minerals occurring or
found on, under or beneath the land.
Water Act
The preamble to the Water Act (Cap 198) provides that it is an “Act to consolidate and
amend the law in respect of the ownership, control and use of water and to provide the
matters incidental thereto or connected therewith.” Section five of the Water Act vests
the ownership of all water in Zambia in the President. The section provides that:- The
ownership of all water is vested in the President. The use, diversion and apportionment of
29
all water shall be made in terms of this Act. In terms of application, the Water Act applies
throughout Zambia apart from:-
a. the Western Province;
b. the Zambezi River;
c. the Luapula River;
d. that portion of the Luangwa River which constitutes the boundary between Zambia and
Mozambique. (Section 3)
Section 2 defines ‘private water’ (which a landowner is at liberty to use as he likes).
‘Public water’ is defined under section 2 to mean: - all water flowing or found in or
above the bed of a public stream, whether visible or not, including lakes, swamps or
marshes forming the source of such a stream or found along its course; The water Act
provides for three types of water uses, viz: ‘primary use’, ‘secondary use’ and ‘tertiary
use’. Section 2 of the Act defines ‘primary use’ to mean “the use of water for domestic
purposes and the support of animal life (including the dipping of cattle).” ‘Secondary
use’ is defined under the same section to mean “the use of water for the irrigation of land
and Agriculture.” Section 2 further defines ‘tertiary use’ to mean “the use of water for
mechanical and industrial purposes or for the generation of power;” In terms of section
8 of the Act, any person shall have the primary use of public water which is found in its
natural channel or bed at such places to which access may be lawfully had i.e. no water
rights are needed for the ‘primary use’ of public water. Any intended use of public water
for secondary or tertiary use requires water rights from the Water Board established
under section 23 of the Act.
The Town and Country Planning Act (Repealed)

At common law, any land owner was free to use and develop his land in any way he
wished provided he did not commit a nuisance or trespass against his neighbor’s
property. The need to provide for a rational and integrated pattern in the process of land
use and development necessitated the enactment of the Town and Country Planning
legislation in 1909 in England. The Town and Country Planning legislation of England
was, like a number of other statutes, ‘imported’ into the Northern Rhodesia Protectorate
by the colonial administration. The Town and Country Planning Act (Cap 283) places
controls on the development and subdivision of land by requiring planning permission
before undertaking any development or subdivision on land. A landowner in Zambia is
therefore no longer at liberty, as was the case at common law, to use or develop his land
as he wishes.
The Public Health Act (Building Regulations)

In a nutshell, the building regulations require that a building permit be obtained before
erecting any structure or building. The building regulations cover such matters as the
construction, materials, height, sanitation, ventilation and size of rooms. A land owner,
therefore, has to comply with the building regulations by obtaining a building permit
before erecting any building or structure on his land.
The Aviation Act

The preamble to the Aviation Act (Cap 444) provides that it is an “Act to enable effect to
be given to the International Convention on Civil Aviation and to make provision for the
30
control, regulation and orderly development of aviation within Zambia.” Subsection 1 of
section 12 of the Civil Aviation Act provides that:- No action shall lie in respect of
trespass or in respect of nuisance, by reason only of the flight of an aircraft over any
property at a height above the ground, which, having regard to wind, weather and all the
circumstances of the case, is reasonable, or the ordinary incidents of such flight, so long
as the provisions of this Act and of the Convention are duly complied with.
Zambia Wildlife Act - Ownership of Wild Animals

Section 3 of the Zambia Wildlife Act (Act No. 12 0f 1998) vests absolute ownership of
every wild animal within Zambia in the President on behalf of the Republic. Subsections
1 to 5 of section 3 provide details about the ownership of wild life in Zambia.
Protection of Tenants – The Rent Act and Landlord and Tenant (Business Premises)
Act.
The purpose of the Rent Act (Cap 206) is to protect tenants against their landlords. The
Act protects the tenants against the landlord in general in terms of protection against
eviction and/or possession and control of rent. The Landlord and Tenant (Business
Premises) Act (Cap 193), as per its preamble, is an “Act to provide security of tenure for
tenants occupying property for business, professional and certain other purposes and to
enable such tenants to obtain new tenancies in certain cases.” The two statutes have
interfered with the traditional freedom of contract by restricting the ability of landlords or
owners of land to do as they may want in relation to the tenancy agreements with their
tenants.
The Land Acquisition Act- Compulsory Acquisition of Land

Compulsory acquisition may be defined as the taking of land or an interest in land from
the owner without his agreement. Section 3 of the Lands Acquisition Act (Cap 189)
empowers the President, whenever he is of the opinion that it is desirable or expedient in
the interests of the Republic, to compulsorily acquire any property of any description.
The compulsory acquisition of property has to be in public interest.
CASE LAW
NATIONAL HOTELS DEVELOPMENT CORPORATION T/A FAIRVIEW
HOTEL Vs EBRAHIM MOTALA (2002) ZR 39 [S.C]
The facts appear from the judgment of the Supreme Court delivered by Ngulube C.J, as
he then was]
This case concerns noise nuisance and the issues are whether it was wrong to find the
appellant (the defendant) liable at all and secondly, if the answer be in the negative,
whether it would be wrong to ban forever the playing of music on the terrace of the
defendant’s hotel. The parties are neighbours separated only by a road and the
respondent (hereafter called the plaintiff) complained that the playing of loud music on
the terrace more or less overlooking his house late into the night disturbed his quiet and
31
convenient enjoyment of his house. The defendant’s position was that the playing of
music on the terrace attracts more patrons and its absence would lead to serious financial
loss. The plaintiff testified to being thoroughly inconvenienced such that it was
sometimes impossible even to hear the dogs barking or visitors’ cars’ arriving or even to
hold any meaningful conversation. The parties called some of the neighbours, on the
other side to say they too were sufferers like the plaintiff. The parties even called experts
to record the noise levels in decibels with the defendant submitting that the plaintiff was
oversensitive and should have no cause of action. An expert on the plaintiff’s side talked
of having recorded noise levels around 81 to 88 decibels while the expert on the
defendant’s side opined that to be painful to the ear and therefore intolerable, the noise
levels should be around 120 decibels or more.
Spirited arguments and submissions were made before us to persuade us that noise
levels at less than 120 decibels should not be actionable. We are not too sure whether
noise nuisance can be reduced to decibels so that only a specific level or quantity of noise
measured in decibels should be actionable. This type of civil wrong has long been
recognized to raise questions of fact, such as whether noise disturbance which deprives a
neighbour of rest or sleep can or cannot inconvenience any other person of ordinary
firmness and sensibility. The whole position is put very well by the learned authors of
Clark and Lindsell on torts, 16th edition, and paragraph 24-05 when they write:-
“In nuisance of the third kind, the personal inconvenience and interference with
one’s enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or
injuriously affects the senses or the nerves, there is no absolute standard to be applied. It
is always a question of degree whether the interference with comfort or convenience is
sufficiently serious to constitute a nuisance. The acts complained as constituting the
nuisance, such as noise, smells or vibration, will usually be lawful acts which only
become wrongful from the circumstances under which they are performed, such as the
time, place, extent or the manner of performance. In organized society everyone must put
up with a certain amount of discomfort and annoyance from the legitimate activities of
his neighbours, and in attempting to fix the standard of tolerance the vague maxim sic
utere tuo, ut alienum non laedas has been constantly invoked. But the maxim is of no use
in deciding what is the permissible limit in inconvenience and annoyance between
neighbours, and the courts in deciding whether an interference can amount to an
actionable nuisance have to strike a balance between the right of the defendant to use his
property for his own lawful enjoyment and the right of the plaintiff to the undisturbed
enjoyment of his property. No precise or universal formula is possible, but a useful test is
what is reasonable according to ordinary usages of mankind living in a particular
society.”
32
“Whether such an act does constitute a nuisance must be determined not merely by
an abstract consideration of the act itself, but by reference to all the circumstances of the
particular case, including, for example, the time of the commission of the act complained
of; the manner of committing it, that is, whether it is done wantonly or in the reasonable
exercise of rights; and the effect of its commission, that is, whether those effects are
transitory or permanent, occasional or continuous; so that the question of nuisance or no
nuisance is one of fact.”
Respectfully, we go along with the foregoing propositions which are supported by case
authorities, as noted by the authors. In the case at hand, the Court below found as a fact
that the plaintiff suffered discomfort, disturbance and inconvenience. Admittedly, the
defendant too was not doing anything illegal as such; they too were exercising their rights
to entertain their patrons with music and to make money. Apparently, from the spirited
submissions, music on the terraces encourages patrons to come in their numbers and to
spend their money. Apparently and contrary to Mr. Wood’s submissions, it is not the
same thing if the music were to be played indoors; in some other part of the hotel, as was
suggested. However, there can be no question of killing the tort of noise nuisance for the
sake of accommodating business interest, as Mr. Wood feared.
The problem here cannot be one of attaching or detaching liability. Quite clearly, there
is no proper ground for disturbing the lower Court’s finding of liability and the ground
urged in that behalf is successful.
However, we find that there was much merit in the ground complaining about the relief
of perpetual injunction and the apparent permanent blanket ban on the playing of music
on the terraces. The problem is one of striking a balance between the right of the
defendant to use his property for his own lawful enjoyment and the right of the plaintiff
to the undisturbed enjoyment of his property. We have lifted this phrase out of the earlier
quotation which in turn was taken from SEDLEIGH-DENFIELD-V-
O’CALLAGHAN14, by Lord Wright at p. 903. In striving to strike a balance, we are
pleased to note the sensible attitude taken by the plaintiff through his Counsel that he is
not opposed to music at reasonable levels and up to a reasonable hour. The blanket ban
14
(1940) AC 880.
33
was too harsh and it ignored the rights of the defendant which equally need to be
recognized and protected. In this regard, the appeal is allowed to the extent that the
complete ban on the playing of music on the terraces is set aside. Instead, there will be
conditions imposed and the order of injunction rephrased so as to permit the playing of
music on the terraces up to 21.30 hours during weekdays and 22.30 hours during
weekends. The times represent a compromise between those suggesting the plaintiff to
damages to be assessed on an aggravated footing by the Deputy Registrar on application
by the plaintiff. We consider that this will address the concern that orders have in the past
been continually breached.
In sum, the appeal succeeds to the extent indicated. In order to foster goodwill and a
sensible approach to the problem by these neighbors, we make no order as to costs.
Unit Summary
In this unit you have learnt about ownership of land and its limitations. The limitations
are drawn from both common law and Statutes. You have also learnt that absolute
ownership of land in
Zambia is not attainable due to the limitations highlighted. Under the doctrine of estates,
the allodia ownership of all land in England is in the crown. A subject cannot own land
per se but an estate or interest or right in the land of a defined duration. At common law
the owner of the largest estate, the fee simple estate, is treated as being the equivalent of
the owner of land. The owner or holder of a fee simple estate had, at common law,
extensive powers of control, use, disposition and enjoyment of the land in which his
estate subsisted. In physical terms he owned and enjoyed everything on, beneath and
above the land. But even at common law there were a number of limitations or
restrictions on ownership and enjoyment of land. It is only prudent that any society must
impose checks on such an extensive right of ownership in accordance with the principle
of the maxim sic utere tuo, ut alienum non laedas. i.e use your own property as not to
injure your neighbour.’ In Zambia a number of statutes have eroded away certain rights
of the ‘owner’ of land at common law. These restrictions have been put in place in order
to protect the wider interests of society and the public at large. The National Hotels
Development Corporation case, excerpted above, clearly shows the need to impose
checks on the rights associated with ‘ownership’ and enjoyment of land so that in our
ownership and enjoyment of land we do not injure others. We need to live but also at the
same time let others live.
Activity
i. Clearly explain what ownership means.
ii. Briefly discuss all the common law limitations on the ownership of land.
34
iii. List any four statutes that provide for limitations on landownership and explain
the limit imposed by each statute listed.
35
UNIT 4
Fixtures and Fitting
Introduction
This unit provides for what qualifies to be a fixture at law and the distinction between a
fixture and a fitting. It also provides for the tests for determining whether a chattel has
become a fixture.
Common law exceptions are also provided for in the unit.
Learning Outcomes
i. After completing this Unit, a student should be able to:
ii. Demonstrate an understanding of the distinction between a fixture and a fitting,
iii. Identify the two tests applied in determining a fixture,
iv. Express an understanding of the common law exceptions to fixtures.
Fixtures
From the legal point of view, land means not only the ground but also the subsoil and all
structures and objects such as buildings, trees and minerals standing or lying beneath it.
This concept of land is often expressed in the Latin maxim “quic quid plantatur solo, solo
cedit,” (whatever is annexed to the land becomes part of the land). A fixture is therefore a
chattel or object that has become so affixed or attached to land so as to become part of the
land. If a chattel has not become a fixture, it is known as a fitting.
Distinction between a Fixture and Fitting

Disputes may arise as to whether a chattel or object has become a fixture or not. Once a
chattel has become a fixture or part of the land it cannot generally be removed. Burn has
observed that the question whether a chattel remains a chattel or has become part of the
land can arise in many contexts, including; whether it passes to a purchaser on the sale of
land, whether it is included as part of the security on the mortgage of land, whether it is
owned by the estate of a tenant for life or passes to the remainder man, whether it passes
on death as realty or personality. In order to resolve such types of disputes there are tests
that have been formulated to determine whether a chattel has become a fixture or not.
Tests for Determining Whether a Chattel Has Become a Fixture

In determining whether a chattel has become a fixture, a combination of two tests is
applied; these are,
a. the degree of annexation; and
36
b. the purpose of annexation.
The Degree of Annexation
Early law attached great importance to this test. In general, for an article to be considered
a fixture, some substantial connection with the land or a building on it must be shown.
Unless actually fastened or connected with the land or building in a substantial way, a
chattel cannot normally become a fixture under the degree of annexation test. A test often
applied is whether the item can be removed without causing damage or injury to land.
Where the chattel merely rests of its own weight on the land, it is not, prima facie, a
fixture. However, this may be rebutted when it is clear that the object was intended as a
permanent improvement of the land. The more securely an object is affixed and the more
damage that would be caused by its removal, the more likely it is that the object was
intended to form a permanent part of the land.
The Purpose of Annexation

Where the purpose of attaching a chattel is to permanently improve the land, rather than
merely to display the chattel, then a fixture is presumed. In order to determine the
purpose of annexation, the question to be asked is, “was the intention to effect a
permanent improvement of the land or building as such; or was it merely to effect a
temporary improvement or to enjoy a chattel as a chattel?” If the intention was to effect a
permanent improvement to the land, then the chattel is a fixture. On the other hand, if the
intention was merely to effect a temporary improvement then the chattel is a fitting. Even
if the degree of attachment is substantial, an object or chattel may not become a fixture if
the method of fixing was necessary for its proper enjoyment. In Vaudeville Electric
Cinema Co. Ltd. v Muriset (1923) 2 CH 74, cinema seats secured to the ground were
held to be fixtures. Objects such as statues, seats, and ornamental vases have been held to
be fixtures even though they were only held in position by their own weight, the reason
being that they formed part of the architectural design of a house or grounds. (Compare
the case above with Lyon and Co. London City and Midland Bank (1903) 2 KB 135 and
Reynolds v. Ashby and Sons (1904) AC CH 74).
Common Law Exceptions
As a general rule, if a chattel constitutes a fixture it cannot be removed from the land
since it is part of the land. There are, however, certain limited exceptions to this rule
discussed below.
Landlord and Tenant

A tenant may remove certain ‘tenant’s fixtures’ during the lease or within a reasonable
time thereafter. These include:
(i) Trade fixtures – Fixtures attached to land by a tenant for the purpose of carrying on a
trade or business are at Common Law removable by the tenant at any time during the
course of the lease or shortly thereafter. In Smith V City Petroleum Company Limited
(1940) 1 ALL ER 260, it was held that petrol pumps affixed to tanks embedded in the
ground were tenant’s fixtures, and were removable within a reasonable time after the
determination of the term and if not so removed, the property in the pump passed on to
the landlord, and a subsequent tenant takes no interest in them. In this case since the
37
tenant did not remove the petrol pumps within a reasonable time after the determination
of the lease, they became the property of the landlord.
(ii) Ornamental and domestic fixtures – A tenant may, during the term of the lease,
remove chattels he has fixed to the house for the purpose of ornamental or domestic use.
These are chattels that can be removed without causing substantial damage to the
building. A mortgagor cannot remove fixtures during the course of the mortgage. As for
fixtures attached by the mortgagor after the date of the mortgage, the mortgagor is not
entitled to remove them. All fixtures attached to the land at the time of the contract of
sale must be left for the purchaser unless otherwise agreed.
CASE LAW
(a) Fixtures – Tests for determining whether Chattel has become a fixture.
LEIGH AND OTHERS VS TAYLOR AND OTHERS [1902] AC 154 [HL]
Valuable tapestries were affixed by a tenant for life to the walls of a house for the
purpose of ornament and better enjoyment of them as chattels. They could be removed
without doing any structural injury. On the death of a tenant for life, a dispute arose
between the estate of the tenant for life and those representing the remainder man on
whether the tapestries had become part of the house or were chattels to the estate of the
tenant for life.
It was held that the tapestries put up for ornamental purpose and attached in the said
manner did not pass with the freehold to the remainder man, but formed part of the
personal estate of the tenant for life, and were removable by her executor. In delivering
the Judgement, the Lord Chancellor [Earl of Halsbury] discussed the two tests for
determining whether the chattel or object has become a fixture or not. His Lordship
emphasized the point that the question is really one of fact taking into account the
changed mode of life. The case is excerpted below.
EARL OF HALSBURY L.C. My Lords, in this case we have had a long and learned
argument by the two learned counsel who have appeared for the appellants. I am not
certain that I quite understand the conflict between the two' propositions, or that I quite
understand on what principle one is supposed to decide these cases apart from the facts of
each particular case.
One principle, I think, has been established from the earliest period of the law down to
the present time, namely, that if something has been made part of the house it must
necessarily go to the heir, because the house goes to the heir and it is part of the house.
That seems logical enough. Another principle appears to be equally clear, namely, that
where it is something which, although it may be attached in some form or another (I will
say a word in a moment about the degree of attachment) to the walls of the house, yet,
having regard to the nature of the thing itself, and the purpose of its being placed there, is
not intended to form part of the realty, but is only a mode of enjoyment of the thing while
38
the person is temporarily there, and is there for the purpose of his or her enjoyment, then
it is removable and goes to the executor.
My Lords, we have heard something about a suggested alteration of the law; but those
two principles appear to have been established from the earliest times, and they are
principles .still in force. But the moment one comes to deal with the facts of each
particular case, I quite agree that something has changed very much: I suspect it is not the
law or any principle of law, but it is a change in the mode of life, the degree in which
certain things have seemed susceptible of being put up as mere ornament were as at an
earlier period the ruder construction made it impossible sometimes to sever the thing
which was put up from the realty. If that is true, it is manifest that you can lay down no
rule which will in itself solve the question; you must apply yourself to the facts of each
particular case; and I am content here to apply myself to the facts of this case. Here are
tapestries which, it is admitted are worth a great deal of money. I put the case: suppose
this had been a tenant from year to year, and she put up these things, is it conceivable that
a person would for the purpose of a tenancy from year to year put up these things exactly
in this way if thereby they made a present of 7000l to the landlord? That I observe,
startled Mr. Levitt; he would not acquiesce in that; but logic I am unable to sever the two
sets of facts which I suggest. It is all very well to say that there is a difference between
the cases of an heir and executor on the one hand and a land lord and tenant on the other;
but if you grant the proposition that it must depend upon the purpose of the annexation,
and you must attend to the degree of annexation. I am wholly unable to frame a
hypothesis of a state of things in which these two principles will not decide the question,
whether you are dealing with a landlord and tenant, or whether you are dealing with a
tenant for life and a remainder man, or with people standing in any other relation to these
things. In this case Madame de Falbe stood as a tenant for life to the remainder man.
My Lords, we come then, in my view, to the determination of the question upon the
principles I have pointed out, applying them to the particular facts of this case. What are
they?
Here we have of ornamentation of very great value. Undoubtedly their only function in
life, if it may be so called, is the decoration of a room. Suppose the person had intended
to remove them the next month or the next year or what not, I do not know,
notwithstanding the ingenious effort that has been made by Mr. Levtett, in what other
way they could have been fastened than they were. We have seen the hard match-board to
which they were fastened in the first instance; then canvas was stretched on it, and the
decoration of the wall as it originally stood was perfectly preserved except to the extent
to which the nails were driven into the wall, because otherwise the tapestry could not
have been stretched out firm, as it was. I do not know any other mode by which the large
one, for example, fourteen feet long, could have been placed there as it was. One has
39
immediately before one’s mind’s eye cases of pictures of another sort, after all, although
this tapestry is very valuable, as I understand, and very beautiful, it is only a picture made
in a particular form- it is a picture whether woven or worked or what not, made for the
purpose of ornamentation. When one looks at it sees what it is, I should have thought, if
ever there was an extreme case in which it would have been impossible to suppose that
the person intended to dedicate it to the house, it was the case of these tapestries, which
can be, and in fact have been, removed without anything but the most trifling disturbance
of the material of the wall.
Under these circumstances I can entertain no doubt, now that we have had the whole
case before us, that there is nothing which points to any intention to dedicate these
tapestries to the house. There is nothing in the nature of the attachment which is
necessarily permanent. My Lords, a number of words have been used, such as “only very
slightly attached” and “not permanently attached.” They really often assume the very
question in debate. Looking at the piece of boarding on which the canvas was stretched
and on which this tapestry went, I can hardly imagine how a piece of tapestry of that
extent, fourteen feet long, stretched against a wall, could be more slightly attached than
this was. Under those circumstances it appears to me that the thing is so easily susceptible
of being removed, and has infact been removed, without any damage or material injury to
the structure of the wall, that to my mind, so far as it is dependent upon a question of fact,
it never was intended to form part of the structures of this house; and that, after all, is
what the meaning of “the benefit of the inheritance” comes to, though expressed in
different words. It never was intended to remain a part of the house; the contrary is
evident from the very nature of the attachment, the extent and degree of which was as
slight as the nature of the thing attached would admit of. Therefore, I come to the
conclusion that this thing, put up for ornamentation and for the enjoyment of the person
while occupying the house, is not under such circumstances as these part of the house.
That is the problem one has to solve in each of these cases. If it is not part of the house, it
falls under the rule now laid down for some centuries that it is a sort of ornamental
fixture, and can be removed by whoever has the right to the chattel- whose it was when it
was originally put up.
My Lords, for these reasons I am of the opinion that this appeal must be dismissed with
costs.
I only wish to say that I do not want to add to the confusion which is suggested to have
caused by differences of opinion among the learned judges below. My own view is that,
going back for some centuries, the real differences of opinion, which apparently on the
surface have been entertained by different judges, have not been at bottom differences in
the law at all, but the facts have been regarded in different aspects according to the
fashion of the times, the mode of ornamentation, and the mode in which houses were
40
built and the degree of attachment which from time to time became necessary or not
according to the nature of the structure which was being dealt with. The principle
appears to me to be the same today as it was in the early times, and the broad principle is
that, unless it has become part of the house in any intelligible sense, it is not a thing
which passes to the air. I’m of opinion that this tapestry has not become part of the
house, and was never intended in any way to become part of the house and I am,
therefore of opinion that this appeal ought to be dismissed with costs, and I move your
Lordships accordingly.
(b) Fixtures- “quicquid Plantatur solo,solo cedit” – Whatever is attached or

annexed to land has become part of the land”
NAMUNG'ANDU V. LUSAKA CITY COUNCIL (1978) ZR 358 [HC]
The plaintiff erected a building on land belonging to the defendant. He had no permission
to do so. The defendants demolished the building as result of which electrical fittings,
roofing sheets, window frames, electric bulbs, doors and door frames were destroyed
with the rest of the building. The plaintiff claimed damages for the value of the building
but abandoned this claim during the trial and proceeded solely with a claim for the value
of the items mentioned.
NGULUBE, High Court Commissioner [as he then was],…The plaintiff having

abandoned any claims asserting proprietary rights or any rights under any permission or
licence appears to base his remaining claim for failure by the defendant to account for his
goods on the basis of neglect. I can see no other basis other than an implied assertion that
the defendants were under a common law duty which they owed to the plaintiff to
salvage and return to him the various goods already referred to. The success or otherwise
of this claim depends on what the legal position is in relation to those goods.
The plaintiff does not now complain against the actual demolition. Indeed, he cannot
complain about the demolition. The evidence from the defendants themselves was that
certain items are normally removed carefully and given to the squatter. I have already
said that on the facts, I believe the defendants' version which was that the plaintiff's wife
and workers had in fact been called in at the demolition. It was their duty to take the
items in respect of which the plaintiff complains.
If, for the sake of argument, the position was that the plaintiff's wife and workers had not
in fact been called in, I would nevertheless not hold that the practice which the
defendants had evolved of rescuing certain parts of the houses being demolished created
any legal obligations on their part to do so.
Common sense demands that when notice is given of an impending demolition, it is the
owner of the structure who should take it upon himself to salvage those building
materials which can be salvaged. As long as the defendants had the right to demolish the
41
house, they were entitled to demolish every component of such house. I can find no legal
authority for the proposition that they should and are obliged to salvage any part of the
structure. The plaintiff can therefore only succeed if the goods in question are moveable
chattels in the house which are not in fact part of such house, i.e. fixtures.
Learned counsel for the defendant has referred me to a number of authorities. These
include Billing v Pill15 where Lord Goddard posed the question, "what is a fixture?" He
then said:
“First, the commonest fixture is a house. A house is built into the land, so
the house, in law is regarded as part of the land; the house and the land
are one thing. Anything which is an integral part of the house, such as for
instance, lead pipes, will also be a fixture and will be attached to or form
part of the land.”
Lord Goddard in that case goes on to consider many more aspects of the question. The
gravamen of his argumentation and this is the correct legal position, that whatever has
been built into a house with a view that it should be permanently annexed thereto and be
an integral part of the unexhausted improvements, becomes part of the house and in turn
part of the land. The electric appliances, doors, door frames, roofing sheets, bulbs and
window frames which the plaintiff contended were already a part of the completed house,
were fixtures. Even, therefore, without debating whether the roof was on or not, on the
plaintiff's own evidence, I would find that these were all fixtures. As there is no
obligation to dismantle a house carefully when an owner of land is carrying out a lawful
demolition, there is no obligation to rescue any fixtures. The maxim quic quid plantatur
solo, solo cedit remains true to this day. The plaintiff must fail even on this claim
restricted to the goods.
(c) Tests for determining whether a chattel or object has become a fixture.
BERKLEY V POULETT (1976) 241 ESTATES GAZZETTE 911, 242 ESTATES

GAZETTE 39 (CA, STAMP, SCARMAN AND GOFF) LJJ)
The eighth Earl Poulett agreed to sell the Hinton St. George Estate to Effold Ltd, and
Effold Ltd agreed, as Earl Poulett knew, to sell Lot 1 which included the mansion house
to the plaintiff. The properties were duly conveyed. Prior to the conveyance to Effold
Ltd, the Earl removed a number of treasures from the house and sold them. Effold Ltd
was unconcerned; but the plaintiff claimed that, by virtue of the sub-contract between
himself and Effold Ltd, he became the owner of the treasures.
The treasures in question were -
15
[1953] 2 ALL ER 1061 at p. 1063.
42
(i) a number of pictures which, while still in their
frames, had been affixed by screws into the recesses in the paneling of the
dining room
(ii) a white marble statue of a Greek
athlete, weighing half a ton and a sundial; each resting by its own weight on a
plinth or pedestal outside the house.
The plaintiff claimed that these treasures were fixtures. The further question
whether, assuming they were fixtures, the plaintiff was entitled to them by virtue of this
sub-contract, is omitted here.
Held: The treasures were not fixtures.
SCARMAN LJ: As so often, the difficulty is not the formulation but the application of
the law. I think there is no need to enter into research into the case law prior to Leigh v
Taylor16. The answer today to the question whether objects which were originally
chattels have become fixtures, that is to say part of the freehold, depends upon the
application of two tests: (1) the method and degree of annexation,- (2) the object and
purpose of the annexation- The early law attached great importance to the first test. It
proved harsh and unjust both to limited owners who had affixed valuable chattels of their
own to settled land and to tenants for years. The second test was evolved to take care
primarily of the limited owner, for example a tenant for life. In Leigh v Taylor the House
of Lords invoked it to protect the interest of the tenant for life who had affixed large and
valuable tapestries to the walls of the house for the purpose of adornment and enjoyment
of them as tapestries, as I read that decision, it was held that she had not made them
fixtures. “They remained chattels from first to last," said Lord Lindley at p. 164 of the
report. In the law of landlord and tenant the law's protection went further: even if the
chattel affixed by the tenant must be held to have become a fixture, that is to say part of
the realty, a rule was evolved that it was to be treated as the property of the tenant and
could be removed by him if it fell into a class recognized by law as "tenants” fixtures.
That is to say if it be a trade, agricultural, or an ornamental fixture we are not concerned,
on the view I take of the case, with "tenant's fixtures." The governing relationship with
which this case is concerned is that of a beneficial owner of the legal estate selling the
freehold to a purchaser. Such a seller can sell as much or as little of his property as he
chooses. Lord Poulett excluded certain named objects from the sale, but the contract was
silent as to the objects claimed by the plaintiff. I think it was conceded by the defendants -
certainly I so read the contract of sale - that, if the pictures, statue, and sundial were
fixtures at the time of the contract, they were included in it as Part of the freehold (subject
of course to a valuation if they should prove to be tenant's fixtures). The preliminary, and
16
[1902] AC 157.
43
basic question is therefore, whether these objects were at that time fixtures, Since Leigh v
Taylor the question is really one of fact. The two tests were explained in that case by the
Lord Chancellor (see the report at 158 and 159), who commented that not the law but our
mode of life has changed over the years; that what has changed is "the degree in which
certain things have seemed susceptible of being put up as mere ornaments whereas at our
earlier period the mere construction rendered it impossible sometimes to sever the thing
which was put up from the realty." In other words, a degree of annexation which in earlier
times the law would have treated as conclusive may now prove nothing. If the purpose of
the annexation be for the better enjoyment of the object itself, it may remain a chattel,
notwithstanding a high degree of physical annexation. Clearly, however, it remains
significant to discover the extent of physical disturbance of the building or the land
involved in the removal of the object. If an object cannot be removed without serious
damage to, or destruction of, some part of the realty, the case for its having become a
fixture is a strong one. The relationship of the two tests to each other requires
consideration. If there is no physical annexation there is no fixture, Quic quid plantatur
solo solo cedit. Nevertheless an object, resting on the ground by its own weight alone, can
be a fixture, if it be so heavy that there is no need to tie it into a foundation, and if it were
put in place to improve the realty. Prima facie, however, an object resting on the ground
by its own weight alone is not a fixture: see Megary and Wade P.716. Conversely, an
object affixed to realty but capable of being removed without much difficulty may yet be
a fixture, if, for example, the purpose of: its affixing be that of creating a beautiful room
as a whole" (Neville J in Re Whaley [1908] 1 Ch 615 at 619). And in the famous instance
of Lord Chesterfield's Settled Estates [1911] 1 Ch 237 Grinling Gibbons carvings, which
had been affixed to a suite of rooms 200 years earlier, were held to be fixtures. Today so
great are the technical skills of affixing and removing objects to land or buildings that the
second test is more likely than the first to be decisive. Perhaps the enduring significance
of the first test is a reminder that there must be some degree of' physical annexation
before a chattel can be treated as part of the realty, The 7th Earl decided in the early part
of the 20th century to install in the two rooms the paneling and so designed it that there
were recesses for pictures. It is this feature which lends plausibility to the suggestion that
the pictures, fitted into the recesses left for them, were not to be enjoyed as objects in
themselves but as Part of the grand architectural design of the two rooms. The
Vice-Chancellor rejected this view. So do I When the paneling was installed in the two
rooms the design was either paneled walls with recesses for pictures to be enjoyed as
pictures, or rooms having walls which were a composite of paneling and pictures: in other
words, the pictures were to be part of a composite mural. I think the former was the truth.
The paneling was Victorian, the pictures a heterogeneous collection. According to
Sothwbys' expert they were of different dates in the 17th and l8th centuries, of different
styles, by different hands, the sort of set anyone could put together at any time, very
different, I would comment, from that unity of design, the "Elizabethan Room" in the case
44
of Re Whaley. There was a particular Poulett family interest in "The Return" and in the
two coronation portraits but this interest focused attention not on the design of the room
but on the pictures themselves. Notwithstanding the painstaking and attractive arguments
of Mr. Millett for the plaintiff, I find, applying the second test, that the pictures were not
fixtures. They were put in place on the wall to be enjoyed as pictures. The paneling
presented a technical problem in putting them up The way the carpenter, or whoever it
was, solved the problem is not Decisive in determining their legal character. But the
purpose in putting them there is.
The statue and the sundial give rise in my judgment to no difficulty neither was at the
time of the sale physically attached to the realty. The sundial was a small object and, once
the Earl had detached it (as he did years earlier) from its pedestal, it ceased to be part of
the realty. The statute was heavy. It weighed 10 cwt and stood 5 ft 7 in high on its plinth.
There is an issue as to whether it was cemented into the plinth or rested on its weight. The
question is not decisive, for, even if it was attached by a cement bond, it was (as events
proved) easily removable. However upon the balance of probability, I agree with the
Vice-Chancellor in thinking it was not attached. The best argument for the statue being a
fixture was its careful sitting in the West Lawn so as to form an integral part of the
architectural design of the west elevation of the house. The design point is a good one so
far as it goes: it explains the sitting of the plinth, which undoubtedly was a fixture But
what was put upon the plinth was very much a matter for the test of the occupier of the
house for the time being. We know that at one time. The object on the plinth had been a
sundial. At the time of the sale it was this statue of a Greek athlete. The plinth's position
was architecturally important it ensured that whatever stood on it would be correctly
positioned But the object it carried could be whatever appealed to the occupier for i.e. time
being. Sundial or statue - it did not matter to the design, so long as it was in the right place
- a result ensured by the plinth which was firmly fixed into the ground. Being, as I think,
unattached, the statue was prima facie not a fixture, but, even if it were attached, the
application of the second test would lead to the same conclusion.
Summary of Unit Three.

This unit has examined and considered the law relating to fixtures. In the legal sense, land
includes not only the ground, soil or earth, but also all buildings on the land and any chattel
attached thereto. In this unit you also have learnt about what a fixture is and the distinction
between a fixture and a fitting. You have also learnt about the tests used to determine
whether a chattel has become a fixture and the common law exceptions to the issue of
fixtures.
Any chattel or object which is so attached to or connected the with land or a building as to
become part of it is a fixture. Disputes may arise, under different contexts, as to whether or
not an object or chattel has become part of the land and therefore a fixture. In determining
whether a chattel or object has become a fixture, regard must be had to the degree or extent
45
of attachment or annexation, and whether the object can be severed or removed without
causing substantial damage to the land. Early law placed too much emphasis to this degree
of annexation test. The modern test (purpose of annexation) looks at the intention or
purpose of attachment or annexation; whether it was for the better enjoyment and use of the
chattel or whether the intention was to effect a permanent improvement to the land or
building. In the former case the object is not a fixture whereas in the latter case the chattel
is a fixture.
Fixtures which if domestic, ornamental or trade fixtures may be removed by a tenant during
the duration of the lease or within a reasonable time thereafter. The cases that have been
excerpted above have illustrated the contexts in which disputes may arise as to whether a
chattel or object has become a fixture or not. The cases have also illustrated the application
of the two tests that can be used to determine whether or not an object has become a fixture
and therefore part of the land or not.
Activity:
i. What is a fixture?
ii. Briefly explain the distinction between a fixture and a fitting.
46
UNIT 5
Co - Ownership – Concurrent Interests in Land
Introduction
This unit provides for what is meant by co-ownership or concurrent interest in relation to land. It
also looks at the types of co-ownership and the provisions of the Lands and Deeds Registry Act
in relation to Co-ownership.
Learning Outcomes:
After completing this Unit, a Student should be able to:
i. Demonstrate an understanding of what is meant by concurrent interest in land;
ii. Outline the types of co-ownership;
iii. State the meaning of the Lands and Deeds Registry Act in relation to co-ownership of
land.
Co-ownership (Concurrent Interests in Land)

Ownership of land may be vested in a single person or in two or more persons. Concurrent Co-
ownership of property describes the simultaneous enjoyment of land by two or more persons.
The law of Co-ownership operates whenever two or more people enjoy the rights of ownership
of property or land at the same time. The Co-owners may be husband and wife, business partners
or friends.
Types of Co-ownership
There were four forms of co-ownership in land at common law. These are joint tenancy, tenancy
in common, tenancy by entireties and coparcenary. Coparcenary and tenancy by entities are old
forms of co-ownership and will not be discussed here.
Joint Tenancy
If co-owned land is subject to a joint tenancy, each co-owner is treated as being entitled to the
whole of that land. There are no distinct ‘shares’ and no single owner can claim any greater
rights over any part of the land than another. Although as between themselves, joint tenants have
separate rights against everyone else i.e. they are in a position of a single owner. Each joint
tenant owns the total interest in the land, along with the other joint tenants. The nature of the
joint tenancy as a single title owned by more than one person is reflected in the legal attributes of
a joint tenancy discussed below.
47
The Right of Survivorship (Jus Accrescendi)
By virtue of the principle of Jus accrescendi, if one tenant dies during the existence of the joint
tenancy, their interest in the joint tenancy automatically passes to the remaining joint tenant(s).
The right of survivorship takes precedence over any attempted transfer by will of the ‘share’ of
the dead joint tenant because there is no such ‘share’ to transfer.
The Four Unities

Before a joint tenancy can exist, the four unities must be present and it is the presence or absence
of these factors that enable us to distinguish a joint tenancy from a tenancy in common. The four
unities of a joint tenancy are the unities of possession, interest, title and time.
Unity of Possession
This unity applies to all forms of Co- ownership. The unity of possession means that each joint
tenant is entitled to physical possession of the whole of the land (see the case of Bull v. Bull
(1955)QB 234). Unity of possession means that there may be no physical division of the land
and no restriction on any joint tenant’s use of each and every part of the land and this includes
the right to participate fully in the fruit of possession, such as receipt of rents and profits derived
from the land.
The Unity of Interest

The unity of interest means that each joint tenant’s interest in the property must be identical in
extent, nature and duration. This means that no joint tenancy is possible between a fee simple
owner and a lease holder. Different qualities of right are inconsistent with the nature of a joint
tenancy as a single title, jointly owned.
The Unity of Title

The unity of title means that each joint tenant must derive their title (i.e. ownership) from the
same document or act. All joint tenants must have derived their title from the same document or
conveyance.
The Unity of Time

The unity of time means that the interest of each joint tenant must arise or vest at the same time
as befitting their ownership of a single title.
Tenancy in Common
A tenancy in common differs from a joint tenancy in the following ways:-
(a) The distinguishing feature of a tenancy in common is that each Co-Owner has a distinct and
quantifiable share in the land. Tenants in common hold in undivided shares i.e. they have distinct
48
shares which have not yet been divided. In other words, a tenant in common can point to a
precise share of ownership of the land e.g. one half, three quarters, etc.
(b) There is no Jus Accrescendi or right of survivorship. The size of the tenant in common’s
share is unaffected by the death of any other tenant in common, whose share passes under his
will or intestacy.
(c) Of the four unities under a joint tenancy only the unity of possession is essential. A tenancy
in common may come about through the severance of a joint tenancy.
Co-parcenary and Tenancy by Entireties.

Co –parcenary as a form of Co-Ownership arose by operation of law on the death of the holder
of unbarred fee tail leaving daughters and no issue through the male line. In such a situation the
daughters would own and hold the land as Co-Parcerners. This form of Co-ownership resembled
a tenancy in common in that there was no right of survivorship and further in that the interest of
Co-Parcerners could be of different sizes. It differed from a Joint Tenancy in that it arose only by
operation of law. A tenancy by entireties arose where land was conveyed to a husband and wife
in a way that would otherwise have created a joint tenancy. It resembled a joint tenancy in that
there was a right of survivorship. It was distinguishable from a joint tenancy in that neither
spouse could alienate his or her interest without the agreement of the other. By the provisions of
sections 1 and 5 of the Married Women’s Property Act of 1882, no new tenancy by entireties
was capable of being created after the said year.
Provisions of the Lands and Deeds Registry Act Relating to Co - ownership

Section 51 of the Lands and Deeds Registry Act (Cap 185) provides that:-
1) Any two or more persons named in any instrument under Parts III to VII, or requiring to be
registered under this Act as transferees, mortgages, lessees or proprietors of any land or estate or
interest therein, shall, unless the contrary is expressed, be deemed to be entitled as joint tenants
with right of survivorship, and such instrument, when registered, shall take effect accordingly.
2) Any statement or reference contained in any document or instrument mentioned in subsection
(1) which specifies the shares in which the property is to be held shall deemed to express that a
joint tenancy is not to be created. When two or more persons are entitled as tenants in common
or joint tenants to undivided shares in any land, only one Provisional Certificate or Certificate of
Title shall be issued in respect of that land, and the Certificate shall be handed or delivered to the
person whose name first appears as a Registered Proprietor on such Certificate and, on any
transfer of any undivided share or interest in such land, the Provisional Certificate or Certificate
of Title, as the case may be, shall be cancelled and a new Certificate issued.
Unit Summary
In this unit you have learnt about types of co-ownership. You have also learnt about the
provisions of the Lands and Deeds Registry Act that relate to Co-0wnership.
Activity:
i. What is Co-ownership?
ii. Briefly explain the distinction between a joint tenancy and a tenancy in common.
iii. What is Jus Accrescendi?
49
iv. Briefly discuss the meaning of Section 51 of the Lands and Deeds Registry Act.
50
UNIT 6
Leases and Licenses
Introduction
This Unit looks at how leases are created, types of leases, assignments and sub-leases. It also
looks at Licenses and Licences Coupled with a Grant or Interest.
Learning Outcomes:
i. Outline clearly the essential characteristics of a lease;
ii. Show an understanding of the types of leases
iii. Demonstrate an appreciation of assignments and sub-leases
iv. Outline the different types of Licences
v. Show an understanding of Licences Coupled with a Grant or Interest.
Lease and Licenses

A lease is an interest or estate in land of a defined duration. The term lease, term of years, demise
and tenancy are often used interchangeably, though a tenancy is normally of a shorter duration.
The land lord is often referred to as a grantor or lessor and the tenant as grantee or lessee. A
licence is permission from the owner of land given to another person (who may or may not own
land), to use the land or do some act on the land which would otherwise be unlawful. A licence
prevents what would otherwise be a tort of trespass. In general, licences lack the qualities of
interest in land, namely, they are not transferable and will not be enforceable against third
parties. A lease, on the other hand, is a proprietary interest in land. It is transferable and capable
of binding third parties. A lease, apart from being a proprietary interest in land, is also a contract
in that it is an agreement between the landlord and tenant. As a contract, a lease is subject to the
principles of contract law. A lease is more than a contract between the two parties in that as an
interest in land it is capable of binding a third party.
The Essential Characteristics of a Lease

A lease will be valid if two requirements have been satisfied. The essential qualities of a lease
are that it gives a person the right of exclusive possession of property for a defined or certain
duration.
Certainty of Duration
In general, a lease must have a certain beginning and a certain ending. The interest granted by
the lease to the tenant must be for a defined and certain period of time. This means not only that
51
the lease must start at a clearly defined moment, but also that the length of the term granted must
be certain. At the commencement of the lease, it must be possible to define exactly the maximum
duration of the lease, even if it is possible to end the lease at some time before this. Any lease or
intended lease that fails to satisfy this requirement as to certainty of duration is void because it
does not amount to a term certain. For example, in Lace v. Chandler (1944) KB 368, a lease for
the duration of the Second World War was held void for being of uncertain maximum duration.
In William Jacks and Company (Z) Limited v. O’Connor (in his capacity as Registrar of Lands
and Deeds)Construction and Investment Holdings Limited (intervening) (1967) ZR 109, a
purported agreement for a lease was held to be invalid on the ground that it contained no date of
commencement of the proposed lease.
Exclusive Possession
The right to exclusive possession is the right to exclude all others from the premises including
the landlord. As a basic proposition, a lease will exist when the occupier of land has been granted
exclusive possession of the premises. If such a right is not conferred upon the grantee then it is
likely that he holds merely a license, which is a personal revocable interest. If the grantor
remains in general control of the demised premises, a license is likely to be inferred. For
example, in Appah v. Parn Cliffe Investment Limited (1964) 1 WLR 1064, the defendants
carried on business of providing rooms for residential occupation at 15s a day or £5 a week. The
building had been and was still described on the outside as a hotel. The house was divided into
seventeen rooms. No meals were provided but the charges covered certain services in the
individual rooms, i.e. daily cleaning and making of beds, weekly supply of fresh linen and
communal services such as electricity and cleaning of staircases and parts of the building used in
common. It was held in this case that the plaintiff was a licensee for reward and not a tenant
having regard to, among other factors, that the defendants reserved the right to enter the room so
that she did not have exclusive possession of it. The granting of exclusive possession is essential
to the creation of the lease. However, even if exclusive possession is granted it does not
automatically follow that the grantee is a lessee or tenant. Grant of exclusive possession is
necessary but not sufficient. In certain exceptional situations an occupier of land will have
exclusive possession of the property but for special reasons no lease will exist.
Types of Leases (Tenancies)

Tenancies or leases may be categorized under the following heads:
Tenancy at Will
A tenancy at will arises where a tenant occupies land with the consent of the landlord on the
terms that either party may determine the tenancy at any time. This kind of tenancy may be
created either expressly or by implication. Common examples are where a tenant whose lease
has expired holds over the landlord’s permission or where a person is allowed into possession
while the parties negotiate the terms of the lease. The landlord is entitled to compensation for the
use and occupation of the land unless the parties agree that the tenancy shall be rent free.
52
Tenancy at sufferance
A tenancy at sufferance arises where a tenant holds over after his lease has expired and remains
in possession without the landlord’s assent or dissent. The tenant is liable to pay compensation
for occupying and using the land. A tenant at sufferance differs from a trespasser in that his
original entry was lawful and from a tenant at will in that his tenancy exists without the
landlord’s assent. A tenancy at sufferance will be converted into a tenancy at will if the landlord
subsequently assents to the tenant’s occupation.
Periodic Tenancy
Apart from express agreements, a periodic tenancy may arise whenever a person goes into
possession with the owner’s consent and pays rent by reference to a definite period, e.g., weekly,
monthly, quarterly, yearly. The lease can continue indefinitely and the total period of the tenancy
will not be known in advance. However, the tenancy is not of uncertain duration. There is merely
succession of periodic tenancies, all of which are of a term certain, i.e. one week, after one week
or one month, after one month and so on. The parties to the tenancy may specifically agree to the
period of notice determining the tenancy but in the absence of this, a monthly tenancy may be
determined by giving one month’s notice, a weekly tenancy by a weeks’ notice, and a yearly
tenancy by giving six months’ notice.
A Lease or Tenancy for a fixed Period

This is a tenancy or lease of a fixed and certain duration e.g. three months, one year, and ninety
nine years, etc.
Tenancy by Estoppel
This arises where a landlord purports to grant a lease at a time when he holds no estate in the
land. If the landlord latter acquires a legal estate, he is estopped from denying the tenancy.
Assignment and Sub-leases

An assignment is a transfer or setting over of property or of some right or interest therein, from
one person to another, the term denoting not only the act of transfer, but also the instrument by
which it is effected. A sub-lease is a lease by a lessee to a third party, conveying some or all of
the leased property for a shorter term than that of the lessee. Sub-leasing is not allowed in
Zambia. Section 25 of the Rent Act (Chapter 206 of the Laws of Zambia) restricts the tenant’s
right to assign or sublet the premises. The section provides that no tenant shall have the right to
assign, sublet or part with the possession of any premises or any part thereof except with the
consent in writing of the landlord or where such consent is unreasonably withheld the consent of
the court.
Implied Obligations of Landlord and Tenant

The rights and duties of the landlord and tenant are normally determined by the provisions of the
lease itself. Where the lease is silent certain covenants are implied by common law. Some of the
main implied covenants are discussed below.
Covenant for Quiet Enjoyment
53
The tenant has a right to be put into possession at the commencement of the term and is entitled
to damages if his enjoyment is substantially interfered with by the acts of the landlord. The
covenant gives the tenant the right to be put into possession of the whole of the premises
demised, and to recover damages from the landlord if the landlord, or any other person to whom
the covenant extends, physically interferes with the tenant’s enjoyment of the land. The covenant
is not one for quiet enjoyment in the acoustic sense but that the tenant will be free from
disturbances by adverse claimants to the property. In Owen v Gadd (1965) 2 QB 99, the landlord
was held to be in breach of the covenant for quiet enjoyment where he caused loss of business to
the tenant by obscuring his shop with scaffolding. In Kenny v Preen (1963) 1 QB 499, the
landlord was liable under the covenant for trying to drive out the tenant by persistent threats or
violent behaviour. In Perera v Vandiyar (1953) 1 WLR 672, the landlord was liable under the
covenant for inflicting physical discomfort on the tenant by cutting off his water, gas or
electricity or depriving him of proper washing facilities.
Not to Derogate From the Grant

A landlord may be restrained from acting to the detriment of the tenant by the application of the
principle that a grantor may not derogate from his grant. The landlord must not frustrate the use
of the land for the purpose for which it was let. In order to constitute derogation from grant, there
must be some act rendering the premises substantially less fit for the purposes for which they
were let. This principle is illustrated by the case of Aldin V Latimer Clark, Muirhead and Co
(1894) 2CH 437, where land was leased to a timber merchant for use for his business; the
landlord was restrained from building on adjoining land so as to interrupt the flow of air to sheds
used for drying timber. Where land was leased for the express purpose of storing explosives the
lessor will be restrained from using adjoining land so as to endanger the statutory license for
storage of explosives.
Repair and Fitness for Habitation

There is no general implied undertaking at common law that the landlord guarantees that the
premises are fit for habitation or for any particular purpose or even that they are not dangerous.
Nevertheless, certain exceptions should be noted.
a) Furnished dwellings – these must be reasonably fit for human habitation when let.
b) Blocks of flats: if a landlord retains control of the means of access such as lifts and stair cases,
then he is under obligation to keep them in state of repair. (See Liverpool C.C v. Irwin (1977)
A.C 239 and Hickey Studios Ltd v. ZIMCO Properties Ltd (1988/89) ZR 181).
Implied Obligations and Rights of a Tenant

1) To pay rent;
2) To allow the landlord to view the premises if he is liable to repair;
3) A tenant has the implied right to emblements (to reap the crops he has sown). This applies to
annual crops artificially produced and actually growing at the determination of the tenancy; and
4) Obligation not to commit waste.
Landlord and Tenant’s Remedies for breach of Covenants
54
The landlord’s remedies for breach of covenant include the remedy of distress, damages for
breach of covenant and forfeiture. The tenant’s remedies for breach of covenant are to sue for
damages, to sue for an injunction to stop a continuing or threatened breach of a covenant, to sue
for specific performance of the landlord’s covenants, particularly the landlord’s covenant to
repair, to deduct the costs of carrying out the landlord’s repairs from future payments of rent.
Licences
The essential nature of a licence has already been pointed out above under the introduction to
this unit. A licence was classically defined in Thomas v. Sorrel (1673) Vaugh 300, as a
permission to use land belonging to another which without such permission would amount to
trespass. The traditional view is that licences are not proprietary in nature. In other words, a
licence is not an interest in land, but rather a right over land that is personal to the parties that
created it, i.e. the licensor and Licensee. Licences may be classified according to the functions
they serve, the circumstances in which they arise or the way in which they are created. Licences
may be classified as bare licences, contractual licences, a licence coupled with an interest and
Estoppel licences or licences protected by Estoppel. The different categories of licences are
discussed in detail below.
Bare Licence
A bare licence is permission to enter upon and/or use the land, given voluntarily by the land
owner who receives nothing in return. The giving of the licence is gratuitous in that it is not
supported by ‘consideration’ moving from the licensee. There is no contract between the parties,
merely a bare permission to do that which otherwise would be a trespass. The licence is
revocable at any time provided reasonable notice is given and the Licensee has no claim in
damages or specific performance should this happen.
Contractual Licence
This arises where a licence is granted under the terms of a contract and valuable consideration
has been given, e.g. admission to a cinema or sports ground in return for payment. In principle
contractual licences are little different from bare licences save only that contractual licences are
granted to the Licensee in return for valuable consideration. Contractual licences are governed by
the ordinary rules of the law of contract. Since these licences are founded in contract, both the
licensor and licensee may rely on the normal remedies for breach of contract in the event of
failure to carry out its terms. Originally, at common law, a contractual licence could be revoked
at any time and the licensee’s only remedy was a claim in damages if the revocation amounted to
a breach of contract. In recent times the Courts have been more willing to grant equitable
remedies. In Winter Garden Theatre London Limited v Millenium Productions Limited (1947)
2 LL ER 331, the House of Lords expressed the view that an injunction may be used to preserve
the sanctity of a bargain. In Verrall v Great Yarmount BC (1980) ALL ER 839, specific
performance of a contract for the hire of a hall was granted. In Hurst v Picture Theatre Limited
(1915) 1 KB 1, specific performance of a contract for wrongful ejection from a cinema after
paying for a ticket was the Plaintiff’s entitlement, as well as having an action for assault.
Generally, a contractual licence cannot bind third parties. The House of Lords held in King v.
David Allen and Sons, Bill posting (1916) 2 A.C 54, that a licence is merely a personal
agreement between the parties and creates no interest in land that might be enforceable against a
third person. In this case the House of Lords held a licensor liable to a contractual licensee in
damages for breach of contractual licence to post adverts on a wall of a building sold to a
55
purchaser with knowledge of the contract who refused to honour the contract. In certain cases
contractual licences have been enforced against third parties. In Errington v Errington (1952) 1
ALL ER 149, a licence to occupy a house in consideration of paying mortgage instalments was
binding on the heir of the deceased licensor. In Binions v Evans (1972) 2 ALL ER72, a widow
of an ex-employee was permitted to live in a cottage rent free for life on condition she
maintained the property. It was held that she had a contractual licence which bound a purchaser
who acquired the property with express notice of the interest. Further, in Tanner v Tanner
(1975) 3 ALL. ER 776, a mother was held to have a contractual licence to allow her to live in the
property until her children were 18, the father having specifically bought the house for the
mother and children and the mother having given up possession of a protected tenancy of a flat.
Licences Protected By Estoppel

The doctrine of Estoppel which is of general application at law and in equity has played a
significant part in the modern development of the law of licences. The basic principle of the
doctrine is that a person who makes, by words or conduct, a representation to another intending
that other to act on it, and the other does so to his detriment (e.g. by expenditure, or giving up
present accommodation), will not be allowed subsequently to take a position inconsistent with
the representation. If an owner of land permits, promises or acquiescences to the use of land by
another he may be estopped from denying that person’s right to use the land. In Willmont v
Barber (1880) 15 CH 96, Fry J. laid down a set of criteria to be satisfied before a proprietary
estoppel may arise: A man is not to be deprived of his legal rights unless he has acted in such a
way as would make it fraudulent for him to set up those rights. What then, are the elements or
requisites necessary to constitute fraud of that description? In the first place, the Plaintiff must
have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some
money or must have done some act (not necessarily upon the defendant’s land) on the faith of his
mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the
existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does
not know of it, he is in the same position as the plaintiff, and the doctrine of acquiescence is
founded upon conduct with knowledge of your legal rights. Fourthly, the defendant, the
possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights. Lastly, the
defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure
of money or in the other acts which he has done, either directly or by abstaining from asserting
his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the
court to restrain the possessor of the legal right from exercising it, but, in my judgment, nothing
short of this will do.” These criteria have by no means been universally applied in the cases. In
the recent decisions the Courts in England have preferred a wider approach concentrating mainly
on the unconscionable behaviour of the promisor.
Licences Coupled With a Grant or Interest

This arises where a licence is granted ancillary to the granting of some proprietary right in the
land or chattel on the land. The licence coupled with a grant enables a person to exercise some
other right connected with land, usually a profit a’ prendre. The right to fish, hunt animals or to
cut timber may all require an attendant permission to enter the land. The licence will bind third
parties to the extent that they are bound by the interest coupled with a licence James Jones and
56
Son Limited v Earl of Tankerville [1909] 2 Ch 440. At common law such a licence is
irrevocable.
Unit Summary:
In this unit you have learnt about the Characteristics of a lease and the different types of leases
including about assignment and sub-leasing.
Activity:
i. With the aid of decided cases, discuss the characteristics of a lease?
ii. What is the difference between a tenancy at will and a tenancy at sufferance?
iii. Briefly explain the difference between an assignment and sub-leasing.
iv. Explain the difference between a bare licence and a contractual licence.
v. Elucidate what is meant by a licence coupled with a grant or interest.
57
UNIT 8
Mortgages
Introduction
This Unit focuses on the nature and creation of mortgages. It also looks at the rights of the
parties to a mortgage. The unit further looks at how a mortgage can be transferred and
discharged
Learning Outcomes
After completing this Unit, a Student should be able to:
i. Define a mortgage;
ii. Explain the nature of a mortgage and the types of mortgages;
iii. Outline how a mortgage is created;
iv. Outline the rights of the parties to a mortgage.
Mortgage
A mortgage was defined by Lord Lindley in the case of Santley v. Wilde (1899) CH 474, as a
conveyance of land or an assignment of chattels as security for the payment of a debt or the
discharge of some other obligation for which it given. The security is redeemable on the payment
or the discharge of some other obligation, notwithstanding any provision to the contrary. Section
65 (1) of Lands and Deeds Act (Cap 185) has somewhat altered the common law nature of a
mortgage as defined by Lord Lindley in the case of Stanley v. Wilde. Section 65 provides that a
mortgage is simply to operate as a security and not a transfer or lease of the estate or interest
thereby mortgaged.
Nature of a Mortgage as a Contract and as an Interest in Land

A mortgage, like a lease, originates in a contract. The borrower of money (the mortgagor) will
enter into a binding contract with the mortgagee (the lender) whereby a capital sum will be lent
on the security of the property owned by the mortgagor. As a contract the parties are at liberty to
stipulate whatever terms they wish for the repayment of the loan, the rate of interest and so forth.
Although a mortgage originates in a contract and partakes of many features of a contract, it also,
like a lease constitutes a proprietary interest in the land. The mortgagee obtains an estate in the
land and the borrower retains an equity of redemption which encapsulates his residual rights in
the property.
Types of Mortgages
There are two types of mortgages, namely, legal and equitable mortgages.
58
Legal Mortgage
A legal mortgage is a mortgage created in respect of a legal estate by deed of legal mortgage or
legal charge.
Equitable Mortgage
An equitable mortgage may be created in the following ways:
a) By deposit of title deeds. A deposit of title deeds creates an equitable mortgage provided it
could be shown that the land was intended to be created as security for a loan.
b) Mortgage of an equitable interest. If the potential mortgagor only has an equitable interest in
the land as opposed to a legal estate, it follows, necessarily, that any mortgage of that equitable
interest will itself be equitable. For example, beneficiaries under a trust have a mere equitable
interest and can only create equitable mortgages.
Rights of the Mortgagor

The dual nature of a mortgage as a contract and as an interest in land means that the mortgagor
has rights arising under the contract of loan and from the protection which a court of equity
offers a mortgagor due to the proprietary interest they retain in their property. The rights of a
mortgagor include:
The Contractual Right to Redeem

Once a mortgage has been created there will normally be a contractual date set for repayment of
the loan which is known as the legal redemption date. At common law if the monies were not
repaid on the legal redemption date, the property vested in the mortgage. This was unfair and so
equity intervened and created the equitable right to redeem i.e. it gave the mortgagor the right to
redeem the property even after the legal redemption date had passed.
The Equitable Right to Redeem

Equity allowed the mortgagor an equitable right to redeem on any date after the date fixed for
redemption. Equity took the view that the property mortgaged was merely a security for the
money lent and that it was late in repaying his loan. Equity compelled the mortgagee to reconvey
the property to the mortgagor on payment of the principal with interest and cost even if the legal
date of redemption had passed. In Salt v. Marques of Northampton (1892) AC 1, Lord Bramwell
described the equitable right to redeem.
59
The Equity of Redemption
The equity of redemption represents the sum total of the mortgagor’s rights (in equity) in the
property which is subject to the mortgage. The equity of redemption is the mortgagor’s right of
ownership of the property subject to the mortgage and is an interest in land which can be dealt
with like any other interest in land. The equity of redemption differs from the equitable right to
redeem in that the latter does not exist until the legal date of redemption is past, whereas the
equity of redemption exists as soon as the mortgage is made. The equitable right to redeem is one
of the adjuncts of the equity of redemption.
Equitable Principles Applicable to Mortgage Transactions

In the case of G and C Kreglinger and New Patagonia Meat and Cold Storage Company,
Limited (1913) AC 25 at page 53, Lord Parker attempted to sum up the equitable principles
applicable to mortgage transactions. His Lordship observed and commented thus: My Lords, I
desire, in connection with what I have just said, to add a few words on the maxims in which
attempts have been made to sum up the equitable principles applicable to mortgage transactions.
I refer to the maxims, “once a mortgage, always a mortgage,” or “A mortgage cannot be
irredeemable” It is a fundamental principle of the law of mortgages that ‘once a mortgage,
always a mortgage’ even if this contravenes the terms of the contract between the parties. The
mortgagor’s right to redeem the mortgaged property or his ‘equity of redemption’ as it is termed
is a necessary incident to every mortgage and cannot be clogged or fettered (Salt v. Marquis of
Northampton (1892) A.C1 at p. 18). The borrower has the right to have their property returned
in full once the loan secured on it has been repaid. A mortgage transaction should not be seen as
an opportunity for the mortgagee to acquire the mortgagor’s property and for this reason the
court of equity will intervene to protect the mortgagor and their equity of redemption against
encroachment by the mortgagee. This protection manifests itself in various ways which are
discussed below;
Exclusion of the Right to Redeem

The right to redeem is inviolable and shall not be interfered with. Any provision preventing a
mortgagor from recovering his property after performance of his obligation is repugnant to the
nature of the mortgage transaction. This is illustrated in the maxims of equity “once a
mortgagealways a mortgage” and that there shall be “no clog or fetter on the right to
redeem.”(Read the case, Samuel v. Jarrah Timber (1904) AC 323). Once a mortgage has been
executed any separate and independent transaction giving an option to purchase may be valid
provided it does not defacto form part of the mortgage. (Reeve v. Lisle (1902) AC 461)
Rights of a Mortgagee
Where a mortgagor defaults under the terms of the mortgage, the mortgagee is given various
remedies. These include;
Right to Sale
The mortgage deed will usually confer a power of sale. There is a statutory power of sale given
under the Conveyancing and Law of Property Act, 1881. Every mortgage whose provision shows
no contrary intention has a power of sale provided it is a mortgage under deed and the mortgage
60
money is due. The statutory power of sale is exercisable without any order of the court being
required. Section 20 of the Conveyancing and Law of Property Act provides for circumstances or
conditions precedent before the statutory power of sale may arise or be exercised.
Right to Foreclose
Foreclosure was the name given to the process whereby the mortgagor’s equitable right to
redeem was extinguishable and the mortgagee left owner of the property both at law and in
equity. Foreclosure is the confiscation of the mortgagor’s interest in the property. The right to
foreclosure arises as soon as the legal date for redemption is past.
Right to Take Possession

At common law the mortgagee’s right to take possession was automatic because the mortgage
gives a legal estate in possession and is exercisable even if the mortgagor is not in default. A
mortgagee will not normally exercise his right until some default has occurred which will enable
him to exercise his power. Once he takes possession, a mortgage is liable to account (unless
taking of possession is to enable him effect a sale). He must account not only for all that he
receives, but also for all he ought to have received.
Right to Appoint a Receiver

This is the appointment of a person with management powers who may collect rents and profits
and although appointed by the mortgagee is in fact an agent for the mortgagor. Such a remedy is
most commonly used where the mortgagor has leased the property and rents and profits can
thereby be intercepted.
Right to Sue for Money after the Date Fixed for Payment
A mortgagee may sue for the money lent. This is like any other contract where money is lent and
there is default.
Unit Summary:
In this unit you have learnt about what a Mortgage is, the nature of a Mortgage and the Rights of
the parties to a mortgage.
Activity:
i. Outline any two duties of a Mortgagor under a Mortgage deed.
ii. Briefly explain the nature of a Mortgage.
iii. Discuss the two types of mortgages and how they are created.
iv. Identify and briefly discuss any three rights of a Mortgagee.
61
UNIT 9
The African Concept of Land Ownership
Introduction
This unit looks at Customary Land Tenure including how customary land is acquired and
transferred. This unit also looks at the Colonial views on the Nature of Interests and Rights under
African Customary Holding or Tenure. It also looks at the reaction to Colonial views and the
positions of Chiefs under Customary Tenure.
Learning Outcomes
i. Demonstrate an understanding of Customary Land Tenure.
ii. Outline how Customary Land is acquired and transferred.
iii. Outline the Colonial views on the Nature of Interests and Rights under African
Customary tenure.
iv. Cite the reactions to Colonial views and the position of Chiefs under African Customary
Tenure.
Meaning of Land Tenure

The word tenure, from the Latin word tenere which means to hold, implies that land ‘is held’
under certain conditions. Land tenure may be described as a system of rules and practices under
which persons may exercise and enjoy rights in land or objects fixed immovably on land. Land
tenure is a relationship between the persons and land which is exemplified through rights. The
nature of title and interests or rights in land under African customary tenure has not only
exercised the minds of scholars and researchers, but also the courts. Divergent views have been
expressed as to the nature of title, interests or rights in or to land under the African customary
tenure.
Direct Acquisition of Customary Land

An individual may acquire land by opening up and using a parcel of land over which no
individual has already prior established rights, or if any earlier established rights have already
elapsed or been abandoned in respect of such piece or parcel of land. This is still the most usual
method of acquiring land under customary tenure in Zambia.
62
Transmission and Succession: Inheritance
Generally under Customary tenure in Zambia the individual’s holding does not come to an end at
his death. The same is inheritable by kinsmen depending on the customary law of the area or
district. An individual who has already acquired rights over a parcel of land may transfer those
rights to another in any of the following ways:
a) Temporary transfer by way of loan of the land; or
b) Outright transfer by way of gift or exchange; or
c) Sale.
According to Professor Mvunga, there is generally no sale of land under customary tenure in
Zambia. What are sold are the improvements on the land as opposed to land itself. This idea of
course is slowly phasing away because of the current high demand of land in the country which
has led to the commercialization of even customary land.
Colonial Views on the Nature of Interests and Rights under African

Customary Holding or Tenure
During most of the early colonial periods in Africa, knowledge of customary tenure in Africa
was scanty. This was largely due to lack of research on the subject. Various erroneous views
based on suppositions than fact were commonly expressed. Sometimes what was known about
one tribe was assumed to be replicated throughout Sub-Saharan Africa. Often generalizations
were made to the effect that the African mode of land holding was communal ownership.
Examples of this can be found in the obiter dicta of the Privy Council inRe: Southern Rhodesia
(1919) AC 211,Amodu Tijan v The Secretary Southern Nigeria (1921) AC 399and Sobhuza II
v Miller and others (1926) AC 518. Writing in about 1945, Meek observed that many of the
early investigations on the native systems of tenure were vitiated by unsound methods of
approach, such as the use of abstract questions – the answers to which were often given by
interested parties – instead of the concrete method of tracing the actual history of the plots of
land. Meek identified the other frequent source error to have been the presupposition that native
conceptions of ownership must be basically the same as those of Europeans. In Re: Southern
Rhodesia, the Privy Council in delivering its judgment commented on the nature of title to land
of the natives of Southern Rhodesia. The Privy Council used the level of social organization of a
society as the measure of the property rights of the indigenous people.
Reaction to Colonial Views

A number of researches on the nature of African customary tenure were undertaken in the decade
of 1940’s and beyond. These researches and the publications resulting therefrom have disputed
most of the colonial views as exemplified in the Privy Council judgments referred to above
Communal or Group Ownership of Land

It may be recalled that in Tijani v Secretary Southern Nigeria (1921) AC 399, Lord Haldane
quoted the words of Rayner, C.J. in the opinion he gave in the case. He observed that:- “The next
fact which it is important to bear in mind in order to understand the nature of land law is that the
notion of individual ownership is quite foreign to native ideas; land belongs to The community,
the village, or the family, never to an individual.” Elias has scoffed at the suggestion or idea that
the whole African land holding or ownership was communal. He retorts thus:- “The fallacy of so
63
describing the African mode of land holding arises, partly from the greater fallacy underlying
the doctrine of “primitive communism,” and partly from an imperfect appreciation of the exact
nature of the concept in African legal categories.”
According to Elias, the land holding recognized by African customary law is neither ‘communal’
holding nor ‘ownership’ in the strict sense of the term. He opined:-
“The term ‘corporate’ would be an apter description of the system of land-holding, since the
relation between the groupand the land is invariably complex in that the rights of the individual
members often co-exist with those of the group in the same parcel of land. But the individual
members hold definitely ascertained and well-recognized rights within the comprehensive
holding of the group.” Elias went on to further observe that:- “Again, the individual’s holding
does not come to an end at his death; it is heritable by his children to the exclusion of all others.
In short, he is a kind of beneficial part-owner, with perpetuity of tenure and all but absolute
power of disposition.” Bentsi - Enchill has observed that although in the large number of
traditional African polities allodial title is regarded as being vested in the community as a whole
or in a chief as trustee for all people there is still some element of individual ownership.
According to Bentsi Enchill, the words of Rayner C.J. (quoted above by Lord Haldane in the
opinion he gave) in Tijani case to the effect that land in the indigenous land law belonged to the
community, the village, or the family and never to an individual, were not true in that, under a
group title there are distinct and exclusive interests of subgroups and individuals in portions of
such land occupied by them or allotted to their interests, which are in many places as nearly
comprehensive as the fee simple estate of English law. The interest that is acquired usually
endures for as long as there are heirs to succeed the original allottee or occupier unless he
effectively abandons the land. This view is not in any material respect different from Elias’
concept of ‘corporate’ system of land holding espoused above. C.M.N. White, a colonial
Government land tenure officer in Northern Rhodesia, conducted an official inquiry on the land
tenure system in all provinces of Northern Rhodesia, apart from Barotseland. The conclusion
from his findings was that land was generally individually acquired and owned. Writing on the
Gikuyu land tenure system, the late anthropologist and first President of Kenya, Jomo Kenyatta,
in reaction to the views that land was communally or tribally owned retorted thus:- “The sense of
private property vested in the family was so highly developed among the Gikuyu but the form of
Private ownership in the Gikuyu community did notnecessarily mean the exclusive use of the
land by the owner or the extorting of rents from those who wanted to have cultivation or building
rights. In other words, it was a man’spride to own a property and his enjoyment to allow
collective use of such property. This sense of hospitality which facilitated the communal use of
almost everything, has been mistaken by the Europeans who misinterpreted it by saying that the
land was under the communal or tribal ownership, and as such the land must be ‘mali ya
serikali’ which means Government property. Having coined this new terminology of land tenure,
the British Government began to drive away the original owners of land.” From the various
views expressed above it comes out clearly that it would be incorrect and untenable to describe
the overall African system of land holding or tenure as communal or tribal. Depending on the
circumstances, the rights or interest could be communal (such as grazing rights) individual,
concurrent or successive.
Research Development and Findings

According to a research done or conducted by White, a colonial land officer in 1959 in all
provinces of Northern Rhodesia, apart from Barotseland, land was generally individually
64
acquired and owned. The research findings pointed to the fact that land even among indigenous
Africans is individually owned as opposed to the general view held by the colonial masters that
land is communally owned.
Positions of Chiefs under African Customary Tenure

Muna Ndulo has observed that a chief is everywhere in Zambia regarded as the symbol of
residuary and ultimate control of all land held by the tribal community and further that in a loose
mode of speech, is sometimes called its owner. Ndulo noted that a chief holds the land on behalf
of the whole community in the capacity of a caretaker or trustee only and further that the chief’s
position was not comparable to the Crown’s position in England, where by the ownership of all
land in England is in the crown alone and everybody else holds his land only as tenant of the
Crown. According to Elias, the land holding recognized by African customary law is neither
‘communal’ holding nor ‘ownership’ in the strict sense of the term. Elias went on to further
observe that the individual’s holding does not come to an end at his death; it is heritable by his
children to the exclusion of all others. In short, he is a kind of beneficial part-owner, with
perpetuity of tenure and all but absolute power of disposition. Bentsi-Enchill has observed that
although in the larger number of traditional African polities allodial title is regarded as being
vested in the community as a whole or in a chief as trustee for all people there is still some
element of individual ownership.
Unit summary
In this unit you have learnt about meaning of customary land tenure and how customary land is
acquired and transferred. You have also learnt about Colonial views on the nature of interests
and rights under African Customary holding or tenure. You have also learnt about the reaction to
Colonial views and the positions of Chiefs under African Customary Tenure.
Activity
i. Briefly discuss the meaning of customary land tenure.
ii. Explain briefly how customary land is both acquired and transferred.
iii. Outline the Colonial conception of land ownership under African Customary Tenure.
iv. Cite clearly the reactions to Colonial views with regards to land holding.
v. Discuss the positions of Chiefs under African Customary Tenure.
65
UNIT 10
Compulsory Acquisition of Property in
Zambia
Introduction
The unit provides for compulsory acquisition of property and what is meant by power of eminent
domain. It also provides the historical background to compulsory acquisition and the 1969
referendum. The unit also provides the Constitutional basis for compulsory acquisition and the
salient provisions of the Land Acquisition Act.
The Power of Eminent Domain
Compulsory acquisition may be defined as the taking of property or land or an interest in land,
usually under statutory power, from the owner without his agreement. Where there is statutory
power to take mere possession of the land without the acquisition of any estate or interest in it
apart from the possession, it is said to have been requisitioned. Compulsory acquisition is an
aspect of the state’s power of eminent domain i.e. the power, usually deemed inherent in
sovereign states, to take private property for public use, subject to making reasonable
compensation, as distinct from mere seizure. In the case of United States of America v Frank
L.Jones, Adam of George J. Pumpelly deceased and others, Law ED.US 106-109,the United
States Supreme Court restated the right or principle of eminent domain thus:- “The power of
taking private property for public uses generally termed the right of eminent domain belongs to
every independent Government. It is an incident of sovereignty and requires no constitutional
recognition.” The general law relating to the subject of compulsory acquisition in Zambia is
contained in the Constitution (Cap 1) and the Lands Acquisition Act (Cap 189). In addition,
statutory provision for acquisition of land either by the Government or local or other public
authorities is made in legislation relating to particular subjects. Instances of such legislation
giving power to take possession of, or acquire land compulsorily are, the Electricity Act (Cap
433),the Zambia Tanzania pipeline Act (Cap 455), Tanzania – Zambia Railway Act (Cap 454)
and the Town and Country Planning Act (Cap 283). Most of these statutes provide for the
application of the Lands Acquisition Act, in terms of compensation for the compulsory
acquisition.
Brief Historical Background to Compulsory Acquisition of Property in Zambia
The Public Lands Acquisition Ordinance

Dunning has observed that legislation relating to the power of eminent domain in most African
Countries could be traced to the period of colonial rule when the colonial rulers introduced
legislation based on their European experiences and that many African Countries inherited, upon
66
independence, eminent domain legislation with a broad but real public purpose limitation.
Dunning further went on to observe that a number of those countries have since (their
independence) recast their law of eminent domain. These observations by Dunning are true in
relation to Zambia. Legislation relating to the power of eminent domain in Zambia can be traced
back to 1929 when the Public Lands Acquisition Ordinance was enacted. The Public Lands
Acquisition Ordinance (Cap 87 of 1958 edition of the Laws of Zambia ‘it is since repealed’) was
first enacted by the Northern Rhodesia Legislative Assembly in 1929. Section 3 of the Ordinance
empowered the Governor to acquire any lands required for any public purposes for an estate in
fee simple or for a term of years as he could think proper, paying such consideration or
compensation as could be agreed upon or determined under the provisions of the Ordinance.
Section 2 of the Ordinance defined public purpose to mean for the exclusive use of Government
or for general public use. In terms of section 9 of the Ordinance, any dispute as to compensation
and title was to be settled by the High Court. The Public Lands Acquisition Ordinance, which at
independence became an Act, remained on the statute books until 1970 when it was repealed by
the Lands Acquisition Act 1970. The Independence Constitution as Regards property Rights
and Compulsory Acquisition. The Zambian Independence Constitution, like most of the
Independence Constitutions of former British Colonies and protectorates, was a British legacy.
The Zambian Independence Constitution entrenched a Bill of Rights. The Bill of Rights or any
provisions thereunder could not be amended without a referendum in which all registered voters
were entitled to vote (Section 72 of the Independence Act). Section 18 of the Independence
Constitution specifically guaranteed protection against deprivation of property and prohibited
compulsory acquisition, except on the grounds itemized or circumscribed under the section, in
which case adequate and prompt compensation had to be paid. Further, section 18 (2) of the
Independence Constitution allowed the person entitled to compensation under the section to
remit within a reasonable time after he had received any amount of compensation the whole of
that amount to any country of his choice outside Zambia. It has been observed that Section 18 of
the Independence Constitution represented “an attempt by the outgoing British Government to
secure the continued exploitation of independent Zambia by the settlers and to protect their
rights to property, although many of them had already left the country permanently.”The
Independence Constitution allowed the dispossessed land owner access to the courts to determine
the legality of the acquisition and the amount of compensation and the promptness of payments.
After Independence, most of the white settlers that owned land left the country leaving large
tracts of land. The new Zambian Government of President Kaunda found itself in a situation
where it could not legally acquire the large tracts of land that were left abandoned and unutilized
due to the provisions of section 18 of the Independence Constitution. Under section 18 of the
Independence Constitution, it was not a ground for compulsory acquisition of land if the same
was abandoned, unoccupied, unutilized, underdeveloped or if it was owned by an absentee
landlord.
The 1969 Referendum

As pointed out above, any amendment to the Independence Constitution’s Bill of Rights required
a referendum. The 1969 referendum was intended to end all referenda, because it was ultimately
intended to remove the entrenchment clause in the Constitution and simplify the amendment of
any part of the Constitution to a Parliamentary majority. In 1969, a referendum was held during
which the majority of the registered voters voted for the removal of the entrenchment clause.
67
Once the referendum had removed the constitutional barrier, the constitutional procedure was
duly amended and Parliament enacted a number of Constitutional Amendment Acts including the
Constitutional (Amendment) (No.5) Act, 1969. Section 4 of the said Amendment Act repealed
the whole Section 18 of the Independence Constitution and substituted a new section 18. The
new section 18 of the Constitution continued to guarantee protection against deprivation of
property. Compulsory Acquisition could be done under the authority of an Act of Parliament
which provided for payment of compensation for the property or interest or right to be taken
possession of or acquired. In general, the amendment Act extended the grounds on which land
could be compulsorily acquired by the Government. The amendment allowed compulsory
acquisition in terms of any law relating to abandoned, unoccupied or undeveloped land as
defined under such a law and also in terms of any law relating to absent or non resident owners
as defined in such a law. The Constitutional amendment also took away the power of the courts
to determine the amount of compensation. Under the amendment, in default of agreement the
amount of compensation was to be determined by a resolution of the National Assembly. Once
the Compensation was determined by the National Assembly, it could not be questioned in any
court on the ground that such compensation was not adequate.
Constitutional Basis for Compulsory Acquisition of Property in Zambia

The current 1991 Constitution, as amended, like the previous Constitutions the country has had,
provides guarantees and protection against deprivation of property (Article 16[1] of the
Constitution). The said Article clearly states the general rule that the acquisition must be under a
law which must provide for adequate compensation. Sub article 2 of article 16 of the
Constitution gives exceptions to the general rule. The sub article provides for instances where
property could be compulsorily taken away without adequate or any compensation. It goes on to
list numerous situations but of relevance to the subject matter at hand being the exceptions under
article 16(2) (j) and (k) which provide as follows: (j) in terms of any law relating to abandoned,
unoccupied, unutilized or undeveloped land, as defined in such law; (k) in terms of any law
relating to absent or non-resident owners, as defined in such law, of any property. In terms of
Article 16 (3) of the Constitution, the powers to decide on the amount of compensation, in
default of agreement, has been reverted from Parliament to a court of competent jurisdiction.
The Land Acquisition Act, 1970

The Public Lands Acquisition Act, remained on the statute books up to 1970, when it was
repealed by the Lands Acquisition Act. The Lands Acquisition Act was enacted following the
removal of the entrenched clauses under the Constitution of Zambia (Amendment) Act of 1969
pursuant to a referendum of the same year. The Lands Acquisition Act was enacted mainly to
address the problem created by absentee landlords who left after the country attained
independence in 1964. The Lands Acquisition Act was conceived as a radical departure from the
Lands Acquisition Ordinance in that the exercise of powers of compulsory acquisition is not
shackled by an authoritative enumeration of the purposes for which land may be compulsorily
acquired. The Act does not deny the justice of requiring compensation for the compulsory
acquisition of private property. The Act, in terms of section 15, restricts payment of
compensation to only developed and utilized land and not undeveloped and unutilized land.
Absentee Landlord were singled out or targeted as the object of the Act.
68
Salient Provisions of the Act
The preamble to the Lands Acquisition Act provides that it is “an Act to make provision for the
compulsory acquisition of land and other property and to provide for matters incidental to or
connected with the foregoing”. Section 2, of the Act, defines land to include “interest in or right
over land but shall not include a mortgage or other charge “. Property is defined under the
section to include “land, and includes any interest or right over property, but shall not include a
pledge or other charge”. Section 3 of the Lands Acquisition Act empowers the president to
compulsorily acquire any property of any description whenever he is of the opinion that it is
desirable or expedient in the interests of the Republic to do so. The section, and indeed the whole
Act, is silent on the question of the purpose or purposes for which the State may compulsorily
acquire property. In contrast, the repealed Public Lands Acquisition Act had a clear definition of
what constituted public purpose on the basis of which the Governor and later the President could
compulsorily acquire land. Be that as it may, it has been held by the High Court for Zambia that
the fact that the Act is silent on the question of the purpose or purposes for which the State may
compulsorily acquire property upon payment of compensation does not per se give the state a
blanket right to compulsorily acquire property without any cause or purpose. The purpose for
compulsory acquisition must be a public one as stated by the court in the case of Wise v. The
Attorney General (1990/92) ZR 124. The President’s discretionary powers must be exercised in
good faith and not for ulterior motives. Once the President has made the resolve to compulsorily
acquire property under section 3, the Minister of lands is required, under a prescribed form, to
give notice of intention to acquire property to the persons interested in the property. The Act
under sections 5 to 9, lays down the steps and formalities required to complete the process of
acquisition. Sections 10 to 14 deal with the issue of compensation. In 1992, section 12 of the Act
was amended by Statutory Instrument number 110 of that year so as to permit any assessment of
compensation to take into account (by deduction) any money used in developing the land which
was donated by the Government and any companies that did not certify that their contribution
was specifically made for the use and benefit of the registered owner. This amendment appears
to have been made to target a property known as the new UNIP Party Headquarters building
owned by Zambia National Holdings Limited the subsidiary company of UNIP (See the case of
Zambia National Holdings and Another v. The Attorney General (1993/94) ZR 115.) Sections
15 to 16 deal with unutilized and undeveloped land as well as absent landlords. Sections 17 to 20
deal with issues of transfer of the compulsorily acquired property to the President. Sections 21 to
24 deal with the issue of the Compensation Advisory Board established for the purpose of
advising and assisting the Minister in the assessment of any compensation payable under the Act.
(You can read the case of Van Blerk v. Attorney General, Supreme Court Appeal No. 138 of
2002 (unreported) in order to have an insight of the procedures to be followed in the process of
Compulsory Acquisition as provided for in the Act).
Unit summary
In this unit you have learnt about the Power of Eminent Domain and the Historical Background
to Compulsory Acquisition of Property in Zambia. You have also learnt about the 1969
Referendum and the Constitutional basis for Compulsory Acquisition of property in Zambia.
You have further learnt about the salient provisions of the Land Acquisition Act.
69
Activity
i. Briefly discuss what is meant by the Power of Eminent Domain.
ii. Briefly explain the historical background to Compulsory Acquisition of Property in
iii. Zambia.
iv. Outline the major problems caused by Section 18 of the Independence Constitution.
v. Clearly state the significance of the 1969 Referendum to Zambia’s land reforms
vi. Outline the process of Compulsory Acquisition as provided for in Lands Acquisition Act.
70

Land Law Module 1

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Land Law Module 1

Uploaded by

Copyright:

Available Formats

THE UNIVERSITY OF ZAMBIA

INSTITUTE OF DISTANCE EDUCTION

LPR 3920: LAND LAW

1. Apply knowledge on ownership and land tenure.

(a) to acquire a knowledge of the rights and liabilities attached to

(b) to lay a foundation for the study of conveyancing.7

Sources of land law in Zambia

Statutes Enacted by the Zambian Legislature

English Common Law

English Statutes Applicable to Zambia by virtual of the British Acts Extension

Historical Background of Land Tenure System in Zambia

Pre and Post-Independence Land Policy in Zambia

Policy under the One Party State 1964 – 1972

Land Reforms in the Second Republic

The Doctrine of Tenure

Estates at common law

Freeholds capable of inheritance (e.g.

Tenure existed in the following modes at the time of Edward 1:

Unfree Tenure or Copyholds

Is There an Equivalent of the Doctrine of Tenure Under Customary Tenure in

In chief Mabumba’s area one person lamented:-

Mukelebai v Widmaier Supreme Court Appeal No. 116 of 1995 [Unreported]

Ngulube, CJ, as he then was]

The appeal fails

Ownership of Land and Its Limitations

The Concept of Ownership

Ownership at Common Law

Common Law Limitations or Restrictions on Ownership

Gold and Silver

Statutory Limitations on ‘Ownership’, Use and Enjoyment of Land in Zambia.

Minerals –Lands Act and Mines and Minerals Act

The Town and Country Planning Act (Repealed)

The Public Health Act (Building Regulations)

The Aviation Act

Zambia Wildlife Act - Ownership of Wild Animals

The Land Acquisition Act- Compulsory Acquisition of Land

NATIONAL HOTELS DEVELOPMENT CORPORATION T/A FAIRVIEW

HOTEL Vs EBRAHIM MOTALA (2002) ZR 39 [S.C]

Fixtures and Fitting

Distinction between a Fixture and Fitting

Tests for Determining Whether a Chattel Has Become a Fixture

The Purpose of Annexation

Landlord and Tenant

(b) Fixtures- “quicquid Plantatur solo,solo cedit” – Whatever is attached or

NAMUNG'ANDU V. LUSAKA CITY COUNCIL (1978) ZR 358 [HC]

NGULUBE, High Court Commissioner [as he then was],…The plaintiff having

BERKLEY V POULETT (1976) 241 ESTATES GAZZETTE 911, 242 ESTATES

The treasures in question were -

Held: The treasures were not fixtures.

Summary of Unit Three.

Co - Ownership – Concurrent Interests in Land

Co-ownership (Concurrent Interests in Land)

The Four Unities

The Unity of Interest

The Unity of Title

The Unity of Time

Co-parcenary and Tenancy by Entireties.

Provisions of the Lands and Deeds Registry Act Relating to Co - ownership

Leases and Licenses

Lease and Licenses

The Essential Characteristics of a Lease

Types of Leases (Tenancies)

A Lease or Tenancy for a fixed Period

Assignment and Sub-leases