UNIT ONE: 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:

 Cite what land is;

 Demonstrate an understanding of what land law is;

 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. 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 abilities which may accrue to man inter se in relation to the use of land.
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;

 Statutes enacted by the Zambian legislature,

 English Common Law,

 Principles of Equity,

 Customary law,

 English Statutes applicable to Zambia by virtue of the English Law (Extent of Application)

Act and the British Acts Extension Act,

 Judicial Precedents and

 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 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 Conveyancing 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 statute 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.

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

Unit Summary

In this unit you have learnt about what land law is and about the sources of land law.

Activity 1.0

 What is land law?

 Outline the sources of land law in Zambia.

Unit Two: 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

After completing this Unit, a student should be able to:

 Outline the pre and post-Independence land policy in Zambia;

 Demonstrate an understanding of the One Party State land policy;

 Outline the recent land policy development.

 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 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 unutilised 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.

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 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 existed in the

following modes at the time of Edward 1:

Free Tenure

These consisted of Knight Service, Serjeanties, Spiritual Tenure, 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.

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

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.

Activity 2.0

 Clearly discuss the land policy in Zambia from pre and post-independence times to recent

policy development.

 Briefly explain what is meant by land tenure

 List any two types of tenure and write brief notes on each one of them.
Unit Three: 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:

 Demonstrate an understanding of the meaning of ownership in relation to land;

 State the two types of Limitations to land ownership

 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 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 ofLeigh 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 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 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 pisciculture.”

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 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.
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.

Activity:

 Clearly explain what ownership means.

 Briefly discuss all the common law limitations on the ownership of land.

 List any four statutes that provide for limitations on landownership and explain the limit

imposed by each statute listed.

Unit Four: FIXTURES

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

 After completing this Unit, a student should be able to:

 Demonstrate an understanding of the distinction between a fixture and a fitting,

 Identify the two tests applied in determining a fixture,

 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 remainderman, whether it passes on death as realty or personalty.

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

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 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.

Unit Summary:

In this unit you 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.

Activity:

 What is a fixture?

 Briefly explain the distinction between a fixture and a fitting.

 Discuss the two tests for determining whether a chattel has become a fixture.

 Outline and briefly discuss all the common law exceptions to the general rule on fixtures.
UNIT FIVE: 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:

 Demonstrate an understanding of what is meant by concurrent interest in land;

 Outline the types of co-ownership;

 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.

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

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:

 What is Co-ownership?

 Briefly explain the distinction between a joint tenancy and a tenancy in common.

 What is Jus Accrescendi?

 Briefly discuss the meaning of Section 51 of the Lands and Deeds Registry Act.
Unit Six: LEASES AND LICENCES

Introduction

This Unit looks at how leases are created, types of leases, assignments and sub-leases. It also looks

at Licences and Licences Coupled with a Grant or Interest.

Learning Outcomes:

After completing this Unit, a student should be able to:

 Outline clearly the essential characteristics of a lease;

 Show an understanding of the types of leases

 Demonstrate an appreciation of assignments and sub-leases

 Outline the different types of Licences

 Show an understanding of Licences Coupled with a Grant or Interest.

Lease and Licences

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 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.

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

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

vVandiyar (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. (SeeLiverpool 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

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 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.
InWillmont 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 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:

 With the aid of decided cases, discuss the characteristics of a lease?

 What is the difference between a tenancy at will and a tenancy at sufferance?

 Briefly explain the difference between an assignment and sub-leasing.

 Explain the difference between a bare licence and a contractual licence.

 Elucidate what is meant by a licence coupled with a grant or interest.

UNIT 7: EASEMENTS AND PROFITS

Introduction

The unit looks at easements and profits including the nature of easements as interests in land. It

also looks at the essential characteristics of an easement and the acquisition of easements and

profits.

Learning Outcomes

After completing this Unit, a student should be able to:

 Demonstrate an understanding of what an easement and profits are.

 Outline the essential characteristics of an easement.

 Explain how easements and profits are acquired.

EASEMENTS AND PROFITS

Easements and Profits, collectively known as servitudes, are interests entitling their owners to

exercise certain rights over the land of another. Easements may be defined as rights annexed to

land entitling its owner (the dominant owner) to do, or prevent the doing of, something on another

person’s piece of land (the servient tenement). Examples of common easements include: rights of

way, light, support of a building and water.

A Profit à prendre has been described as a right to take something off another person’s

land(Dukeof Sutherland v. Heathcote (1892) 1 CH 475 at page 484). The thing taken must at the
time of taking be susceptible of ownership(Lowe v. J. W Ashmore Limited (1971) Ch 545 at page

557). Examples of a profit would include a profit of piscary which entitles a person to enter

another’s land and take fish, profit in the soil giving the right to take sand, gravel or coal. The main

distinction between an easement and a profit is that the latter entitles its owner to take away

something capable of ownership from the servient land, while the former does not. An easement

also differs from a profit in that a profit may exist “in gross,” (i.e. independent of ownership of

land or belonging to a person in his own right, not as annexed to ownership of land) while an

easement must always be appurtenant i.e. attached to ownership of particular land. Further, the

owner of a profit enjoys possessory rights over the servient tenement and the owner may bring an

action of trespass for their infringement. The burden of a profit attaches to land (hence its

proprietary status) but the benefit may be held by any person or indeed any number of persons.

The Nature of Easements as Interests in Land

Easements comprise certain rights which one land owner may exercise or enjoyover the land of

another. It is important to point out at the outset that every easement will involve two separate

pieces of land. An easement is a proprietary interest in land itself. It is not merely personal to the

persons who originally created it. An easement confers a benefit and a burden on the land itself so

that it may be enjoyed or suffered by any subsequent owner of the dominant or servient land. An

easement therefore differs from a licence in that a licence is not a proprietary interest in land and in

that an easement is always appurtenant to land. A lease, like an easement, is a proprietary interest

in land. However, the distinction between the two is that an easement does not give its owner any

possessory right over the land of another.

An easement may be either positive or negative. A positive easement is the right to do something
on the land of another, for example a right of way, whereas a negative easement imposes a

restriction on the servient owner such as with the right of light or air the servient owner may not

build so as to unreasonably obstruct the flow of light. Similarly, a right of support imposes a

restriction that a neighbor’s property will not be disturbed.

The Essential Characteristics of an Easement

There are established criteria for determining whether an alleged right is capable of amounting to

an easement. It was laid down by the Court of Appeal in England in ReEllenborough Park(1955)3

ALL ER 667, that there are four essentials for an easement to exist. These are discussed below.

There must be a Dominant and Servient Tenement

For a right to exist or qualify as an easement there must be a dominant and servient tenement.

Dixon has observed that this criterion lies at the very heart of the nature of an easement. It may be

recalled from above that every easement involves two separate pieces of land. This is because

easements are rights which exist for the benefit of one piece of land and are exercised over another.

There must be land that is benefiting from the exercise of the right (the dominant tenement) and

land that is burdened (the servient tenement). In technical terms it is said that an easement cannot

exist “in gross” i.e. independent of ownership of land but only as appurtenant (attached) to a

dominant tenement. A privilege to a person with no dominant land is a licence.

An easement cannot exist unless and until there is both a dominant and servient tenement in

separate ownership. In London and Blentheim Estates Limited v Ladbroke Retail ParksLimited

(1993) ALL ER 307, it was held that no easement existed because the potential servient tenement

had been transferred before the dominant tenement had been acquired.
The Dominant and Servient Tenement must not be Owned and Occupied by

The Same Person

It has been observed that the creation and continued existence of an easement is dependent on the

dominant and servient tenements being owned or occupied by different persons. This is simply

because an easement is essentially a right in another person’s land: e.g. to walk over it or to enjoy

the passage of light over it. According to the learned authors of Megarry’s Manual of the Law of

Real Property, an easement is essentially a right in alieno solo (in the soil of another) and

therefore a person cannot have an easement over his land. In Roe v Siddons (1888) 22 QBD 224,

Fry L.J observed that:-

“When the owner of Whiteacre and Blackacre passes over the former to blackacre he is not

exercising a right of way in respect of Blackacre; he is merely making use of his own land to get

from one part of it to another.”

Rights exercised by an owner over another land of his own are known as quasi-easements.

The learned authors of Megarry’s Manual of the Law of Real Property have pointed out that the

same person must not only own both tenements, but also occupy both of them before the existence

of an easement is rendered impossible. There must be both unity of ownership and unity of

possession for an alleged easement to be rendered impossible. This means that a tenant may enjoy

an easement over land retained by the landlord and vice versa as in this case there is unity of

ownership but no unity of possession. Once the dominant tenement and servient tenement come

into the ownership and possession of the same person, any easement over the servient tenement is
extinguished.

The Easement must accommodate the Dominant Tenement

For an alleged right to qualify as an easement, it must accommodate i.e. benefit the dominant

tenement as tenement. This requirement makes it clear that easements are rights which attach to

land and not to persons. Thus, any alleged easement must confer a benefit on the land as such and

not merely on the person who currently owns the land. The general idea is that the alleged

easement must benefit the user of land, the value of the land or the mode of occupation of the land.

According to Megarry’s Manual of the Law of Real Property, the test is whether the right

makes the dominant tenement a better and more convenient tenement. There must be a connection

or nexus between the user of the dominant tenement and the enjoyment of the right. This may be

established by showing that the general utility of the dominant tenement has been improved for

example, by giving a means of access or light.

The right must not confer a purely personal advantage on the owner of the dominant tenement. In

Hill v Tupper (1862) 2H 8C 121, the owner of a canal granted the Plaintiff the sole and exclusive

right to put or use pleasure boats on the canal for profit. The defendant without any authority put

rival boats on the canal. It was held that Hills right amounted to a mere personal advantage or a

licence not a right attaching to land itself. He could not sue Tupper as the right was not an

easement. The right was not sufficiently connected with the land so as to amount to an easement. It

has been observed that if Hill had been granted the right to cross and recross the canal to get to and

from his land then an easement could have been created.

The Easement must be Capable of Forming the Subject Matter of the Grant

This is an all embracing criterion. According to Dixon, technically the point is that every easement

must be capable of being expressly conveyed by deed; it must lie in grant. What it means in

practice is that there are certain types of rights which previous case law has suggested are

intrinsically unsuitable for inclusion in the list of easements.

According to Megarry’s Manual of the Law of Real Property, the above criterion involves the

following points:-

(a) That there must be a capable grantor and grantee. The person or entity granting an

easement must have the capacity to do so. Equally, the grantee must have legal capacity

to receive a grant.

(b) The right must be sufficiently definite. A vague or inexact right cannot exist as an

easement; for example, there is no easement of privacy or of a general flow of air (not

in a defined channel) over land.

(c) The right must be within the general nature of rights capable of existing as easements.

The learned authors of Megarry’s Manual of the Law of Real Property have further observed

that although most easements fall under one of well-known heads of easements such as way, light,

support, etc., the list of easements is not closed(Browne v. Flower (1911) I Ch 219). The right

must fall within the general characteristics of an easement. It is not necessary that a new easement

should fall under recognized categories (way, water, light, support). What is of importance is that

the right should satisfy the four general characteristics of an easement. New easements have from

time to time been recognized. Examples include a right to use a lavatory on another’s land(Millerv.
Emcer products (1956) Ch 304 and the right to store coal in a coal Bunker(Wright v. Mc adam

(1949) 2 KB 744).

Courts are reluctant to recognize an easement which gives the dominant tenement owner exclusive

occupancy of the servient tenement(Copeland v. Greenhalf (1952) CH 488). Further it is unlikely

that a Court will recognize an alleged easement that requires the servient tenement owner to spend

money(Philips v. Pears (1965) 1 QB 76). This is because an easement is a right over the servient

land for a defined purpose and is not equivalent to a right of ownership of that land.

NOTE: The essential characteristics of an easement were also discussed in the Zambian High court

case of Chona v. Evergreen Farms Limited 1996/HP/2727 (H/C unreported). The case also

involved prescription as a mode of acquisition of an easement.

Acquisition of Easements and Profits

Easements and Profits may be acquired or created by statute or by grant, express or implied or by

prescription based on long use or presumed grant.

Express Grant or Reservation

An easement is expressly granted when the owner of the potential servient tenement grants or

gives an easement over that land to the owner of what will be the dominant tenement. Under

express reservation, the owner of the potential dominant tenement keeps i.e. reserves an easement

over that land. This can occur where land is owned by a potential servient owner and he then sells

or leases a piece of that land to another, he may include in that sale or lease a grant of an easement

to the purchaser.

Statute
Easements may be granted by an Act of Parliament for example giving rights in respect of cables,

pipes, sewers etc.

Presumed Grant or Prescription

A presumed grant may be based on the doctrine of prescription at common law or on the doctrine

of a lost modern grant or may arise under the Prescription Act, 1832 and in each of these cases the

right is founded on long undisturbed possession or use.

The law presumes from long enjoyment that the right had a lawful origin in a grant. In each case

the following common criteria must be established:

(a) The use is “as of right.” This is explained in the Latin maxim nec vi, nec clam, necprecario,

(without force, without secrecy without permission). In Union Lighterage Co. vLondon Graving

Dock Co (1902) 2 Ch. 557,secret user occurred where a dock supported by invisible rods were

sunk under the servient tenement. In Liverpool Corporation v H.Coghill and Son Limited(1918) 1

Ch. 307,a secret discharge of chemicals into a sewer could not qualify as an easement.

(b) The use must be continuous, as far as the nature of the right allows. User can be by

successive owners of the dominant tenement.

(c) The user must be by or on behalf of the owner against another owner. If a tenant acquires

an easement against a third party, he acquires it on behalf of the fee simple estate. If a tenant

occupies the servient tenement, an easement cannot be acquired against it, though if user began

against a fee simple owner, it does not make it invalid for prescriptive purposes if the land is later

leased. As prescription rests on acquiescence, a claim will fail if user can be proved only when the

servient land was occupied by a tenant for the fee simple owner may not be able to contest the user.
At common law a grant was presumed if enjoyment dated from time immemorial i.e. since 1189

(since the first year of the reign of King Richard the first). This was later converted into the test of

living memory and later on a user of twenty years or more has sufficed. Such a grant would not be

available if at any time since 1189 the right could have existed.A mechanism to avoid the rigours

of common law rule was developed by the Courts under the fiction of lost modern grant. If a

claimant could show actual enjoyment for a reasonable period, the Court was bound to presume an

actual grant which was later lost. Twenty years or more could be sufficient for the purpose.

In Charles Dalton v Henry Angus and Co. and Another (1881) 6 App Cas 740,it was held that a

right to a lateral support from adjoining land may be acquired by 20 years uninterrupted enjoyment

for a building proved to have been newly built, or altered so as to increase pressure at the

beginning of that time and it is so acquired if the enjoyment is peaceable and without deception or

concealment and so open that it must be known that some support is being enjoyed by the building.

The Prescription Act

The preamble to the Prescription Act provides that it is an Act for shortening the time of

prescription in certain cases. The object of the Act was to simplify the method of acquisition of

easements by prescription by shortening the time of legal memory by: (1) making it impossible to

defeat a claim to an easement or profità prendre by custom, prescription or grant, or merely by

showing that it could not have existed at some point of time since the commencement of ‘legal

memory’ i.e. since the first year of reign of King Richard the first and without obliging the

claimant to resort to the unsatisfactory fiction of lost modern grant and by making certain periods
suffice as proofs of the existence of specified rights claimed. The statute has not in any way

rescinded previous practice. It has merely provided an additional method of claiming an easement

or profità prendre.The claimant may now proceed under the statute or according to the common

law or under the doctrine of lost grant or by all these methods and the present practice is to plead all

these methods alternatively.The Act does not enable claimants to establish easements or profits

rights which could not be established as such at common law.The Prescription Act treats

easements of light differently from other easements.

Recording of Memorial of Easement in a Certificate of Title.

Section 50 of the Lands and Deeds Registry Act provides how memorial of

easement must be recorded in a certificate or provisional certificate of Title.

Unit Summary:

In this unit you have learnt about the Nature and essential Characteristics of an easement. You

have also learnt about how one can acquire both an easement and a profit.

Activity:

 Briefly explain the nature of an easement as an interest in land.

 Outline and discuss all the essential characteristics of an easement.

 Explain how one can acquire an easement.

 What is a profit?
Unit Eight: 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:

 Define a mortgage;

 Explain the nature of a mortgage and the types of mortgages;

 Outline how a mortgage is created;

 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.

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.

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

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:

 Outline any two duties of a Mortgagor under a Mortgage deed.

 Briefly explain the nature of a Mortgage.

 Discuss the two types of mortgages and how they are created.

 Identify and briefly discuss any three rights of a Mortgagee.

Unit Nine: 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

After completing this Unit, a student should be able to:

 Demonstrate an understanding of Customary Land Tenure.

 Outline how Customary Land is acquired and transferred.

 Outline the Colonial views on the Nature of Interests and Rights under African Customary

tenure.

 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.

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 commercialisation 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

thecommunity, 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 describing the African mode of land holding arises, partly from the greater

fallacy underlying the doctrineof “primitive communism,” and partly from an imperfect

appreciation of the exact nature of the concept in Africanlegal 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 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:

 Briefly discuss the meaning of customary land tenure.

 Explain briefly how customary land is both acquired and transferred.

 Outline the Colonial conception of land ownership under African Customary Tenure.

 Cite clearly the reactions to Colonial views with regards to land holding.

 Discuss the positions of Chiefs under African Customary Tenure.

UNIT TEN: 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

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.

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.

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 inthe

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 ofZambia 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 ofVan Blerk v. Attorney General, Supreme Court

AppealNo. 138 of 2002 (unreported)in order to have an insight of the procedures to be followed in

theprocess 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.

Activity:

 Briefly discuss what is meant by the Power of Eminent Domain.

 Briefly explain the historical background to Compulsory Acquisition of Property in

Zambia.

 Outline the major problems caused by Section 18 of the Independence Constitution.

 Clearly state the significance of the 1969 Referendum to Zambia’s land reforms

 Outline the process of Compulsory Acquisition as provided for in Lands Acquisition Act.
UNIT ELEVEN: STATUTORY REGISTRATION, CONTROL

AND LAND USE IN ZAMBIA

Introduction

The unit provides for statutory registration, control and land use in Zambia. It provides for a

review of selected statutes in relation to registration, control and land use in Zambia.

Learning Outcomes

After completing this unit, a student should be able to:

 Demonstrate an understanding of the process of land registration in Zambia.

 Outline how tenants of both dwelling houses and business premises are protected by

statutes in Zambia.

 Cite the salient provisions of the Lands Act and The Urban and Regional Planning Act.

The Lands and Deeds Registry Act, 1914

Registration of Interests in Land

Grants of land and dealings in land are effected by means of documents which are drawn in

compliance with the formalities required by English law as applied in Zambia. The purpose of the

Lands and Deeds Registry Act is to secure publicity for documents relating to land.

The Lands and Deeds Registry Ordinance, which at independence became an Act (Cap 185), first

came into operation in Northern Rhodesia on 1st November 1914. The Ordinance was amended

from time to time with the major amendments being effected on the 1st May 1944.
The Salient Provisions of the Act

From the preamble, the objectives of the Lands and Deeds Registry Act are to:-

(a) provide for the registration of documents;

(b) Provide for the issue of provisional certificates of title and certificates

of title;

(c) provide for the transfer and transmission of registered land, and

(d) provide for the matters incidental to or connected with the foregoing.

Establishment of Registry of Deeds

Section 3(1) of the Act provides for the establishment and constitution of the Lands and Deeds

Registry. There is currently a district registry in Ndola.

Documents Required to be Registered and times within which Registration must be Effected

Section 4 of the Act provides for documents that require to be registered.

This Section was discussed in the case of William Jacks and Company (Z) Limited v O’Connor,

(in his Capacity as Registrar of Lands and Deeds) and Construction and Investment Holdings

Limited Intervening (1967) ZR 107.

Section 5 provides for times within which registration must be effected.

Documents to be Void For want of Registration

Section 6 provides the effect of failure to register.

In Patel and Another v Daud Ismail LRNR (1949-54) 563, an agreement for a lease which

contained an option to purchase was not registered as required by section 4 of the Lands and Deeds
Registry Ordinance (now Section 4 of the Lands and Deeds Registry Act). Chief Justice Sir

Herbert Cox in the High Court for Northern Rhodesia allowed registration out of time although

three years had elapsed. The Special circumstances which the Court found were that:-

(a) the applicants had taken reasonable steps to ensure that their rights under the agreement

were preserved.

(b) the respondent had been asked to execute a formal lease and had refused

(c) it would be inequitable not to grant the application.

In Sundi v Ravalia LRNR (1949-54) 345,Woodman J, sitting in the High Court of Northern

Rhodesia held that the phrase “null and void” in section 6 of the Lands and Deeds Ordinance (now

Lands and Deeds Registry Act) means “of no effect whatsoever.” In Krige and Another

vChristian Council of Zambia(1975) ZR152, it was held by the Supreme Court; following the

decision in the Sundi Casethat, the effect of non-registration was that the agreement was void for

all purposes whatsoever.

In Ward v Casale and Burney (1949-1954) NRLR Vol p 764,Robinson, J sitting inthe High Court

for Northern Rhodesia held that there was no difference between the expression “null and void” as

used in the Lands and Deeds Ordinance and the expression ‘void at law,’ as used in the Real

Property Act, 1845. In other words a document required to be registered under section 4, but not

registered would only be ‘void at law’ but valid in equity. Of the two decisions, the decision Mr.

Justice Woodman in Sundi v Ravaliaappearsto be a sound one in the context of section 4 and 6 of

the Lands and Deeds Registry Act.

Optional Registration of Documents not Required to be Registered, and Registers to be kept.

In terms of Section 8, any document affecting land which is not required to be registered pursuant

to the provisions of subsection 1 of section 4 may nevertheless be registered in a manner as the

Registrar may direct. Section 9 of the Act provides for the registers to be kept.

In terms of the Miscellaneous register and the content thereof, section 10 of the Act provides for

such.

Correction of Errors or Omissions in Register

Section 11 of the Act Provides for correction of errors or omissions in the registers.

Registration Not to Cure Defect

Section 21 of the Act provides that the registration of a document shall not cure any defect in any

instrument registered or confer upon it effect or validity. In other words, an instrument registered

stands or falls on its own merits.

Certificate of Title required before Registration of an Interest in Land

Section 29 provides that a certificate of title shall be required before any registration of any

document purporting to grant, convey or transfer land or any interest in land.

Effect of Issue of a Provisional Certificate of Title

Section 32 provides the effect of issue of a provisional Certificate of Title.This section was

discussed in the case of White v Ronald Westerman and Others (1983) ZR135.As to the effect of

issue of Certificate of Title, Section 33 of the Act provides this. This section was construed in

Chilufya v Kangunda (1999) ZR 166 (SC).

Restriction on Ejectment after Issue of Certificate of Title and Protection Against Adverse

Possession

Section 34 Provides for restriction on ejectment after issue of Certificate of title. Section 35

provides protection against adverse possession. This section is discussed in the cases of

Lumanyenda and Another v. Chief Chamuka and others (1988/89) ZR 194.

Certificate to be evidence of Proprietorship

Section 54 of the Act provides that a certificate of title shall be evidence of proprietorship. This

section was construed in the case of Chilufya v Kangunda (1999) ZR 166 (SC).

Caveats

Part VI of the Act (Sections 76-83) deals with caveats. Section 76 stipulates as to who is entitled to

place or lodge a caveat. This section was construed in the case of Construction And

InvestmentHolding Ltd v William Jacks And Co. (Z) Ltd (1972) ZR66 andLenton Holdings

Limited v Moyo (1984) ZR 55.

In terms of section 77 of the Act, the caveat is required to be signed by the caveator or by his

Attorney or agent and shall state with sufficient certainty the nature of the estate or interest claimed

by the caveator with such other evidence as may be required section 77 of the Act was construed in

the case of Lenton Holdings Limited v Airforce Moyo (1984) ZR 55.

Section 79 of the Act provides for the effect of a caveat. This section is discussed in the cases

Magic Carpet Travel And Tours v Zambia National Commercial Bank Limited (1999) ZR 61

and ConstructionandInvestment Holdings v William Jacks and Company (Z) limited (1972)

ZR 66.

Section 81 provides for the procedure for removal of a caveat.In terms of section 82, a person

entering a caveat without reasonable cause can be liable for damages.

This section was construed in Construction Holding Limited v William Jacks and Company (Z)

limited (1972) ZR 66.

Section 83 provides that a caveat may be withdrawn by the caveator or by his attorney or agent

under written authority and either as to the whole or any part of the land affected, or the consent of

the caveator may be given for the registration of any particular dealing expressed to be made

subject to the rights of the caveator.

Appeals to Court from Decisions of the Registrar

Section 87 provides for appeal to Court from decisions of the Registrar. This Section is discussed

in the Case ofNew Plast Industries v The Commissioner of Lands and Another Supreme Court

of Zambia Appeal No. 8 of 2001.

The Rent Act (Chapter 206 of The Laws of Zambia)

The Purpose of the Rent Act in general is for the protection of tenants of dwelling houses. This

protection is largely achieved under the Act by limitation of rent payable for dwelling houses and

provision of a substantial measure of security of tenure for tenants of dwelling houses.

Parliament has sought to regulate the contractual relationship of landlord and tenant, by way of

legislation, in the field of residential and business lettings, in order to protect the tenant who is in a

weaker bargaining power in relation to the landlord.

Salient Provisions of the Act

The preamble to the Rent Act generally gives the scope and objectives of the Act. The preamble

provides that it is:-

“An Act to make provision for restricting the increase of rents, determining the standard rents,

prohibiting the payment of premiums and restricting the right to possession of dwelling houses,
and for other purposes incidental to and connected with the relationship of landlord and tenant of

a dwelling house.”

Scope of Application of the Act

Section 3(1) provides for the scope of application of the Act.

Powers of Court

The Court has wide powers under section 4 of the Act.The Court has powers under section 5 of the

Act to investigate any complaint relating to the tenancy made to it either by the landlord or a tenant

of such premises.

Fixation of Standard Rent and Restriction on Increase of Rent

In terms of section 8(1) of the Act, the duty to apply to Court for standard rent lies on the landlord

and this should be done either before letting the premises or within three months of the

letting.Failure to comply with this requirement is criminalized under section 8(2) of the Act.

Section 9 provides one of the most important protections afforded to a tenant by the Act, i.e.it

restricts the increase of rent in excess of standard rent.

Penalty for Demanding or Accepting Excess Rent and Permitted Increases in Rent

Section 10 criminalizes the demanding or accepting of rent in excess of the standard rent or an

advance of rent exceeding two months standard rent.

Section 11 provides for instances when the landlord may increase the standard rent.

Restrictions on Right to Possession and on Levying of Distress for Rent

Section 13 of the Act provides another important protection afforded to a tenant. The section

confers security of tenure on the tenant by circumscribing the instances in which the tenant can be

deprived of possession or forcibly removed by order of court.

Restrictions on Premiums

Section 15 of the Act places a restriction on premiums. In terms of section 15(2), the demanding or

taking of any payment or consideration in contravention of section 15(1) is criminalized.

Repairs

Section 24 of the Act provides for the issue of repairs by giving a position about whose

responsibility it is in the absence of an express agreement.

Restriction on Right to Assign or Sublet Premises and Subletting by Tenant

Section 25 of the Act restricts the tenant’s right to assign or sublet the premises. Section 26(1)

Provides for instances when the tenant may sublet.

Amendment Act (No.12) Of 1974 (Local Authorities and National Housing Authority)

Act No. 12 of 1974 amended the Rent Act. Section 3 of the Act was amended to include other

situations where the Act does not apply. These are premises let by any local authority and National

Housing Authority.

Enforcement of the Act

In terms of enforcement of the Act, apart from the wide powers vested in the Court, section 30

provides for rent controllers whose duties include making valuation assessment and carrying out

any function or duty specified under the Act.

The Landlord and Tenant (Business Premises) Act (Chapter 185 of The Laws

of Zambia)

The Landlord and Tenant (Business premises) Act was enacted in 1971 to supersede the Rent

Control (Temporary Provision) Act whose life was going to expire on 31st December1971.
Salient Provisions of the Act

Scope of Application

Section 3 of the Act provides the extent or scope of application of the Act.

Definition of ‘Lease’, ‘Tenancy’, and ‘Business’

The term ‘lease’ is defined under Section 2 of the Act to mean:-

“A lease, under-lease or other tenancy, assignment operating as a lease or under-lease, or an

agreement for such lease, under-lease, tenancy or assignment.”

The term “tenancy” is also defined under section 2 of the Act.“Business” is defined under section 2

of the Act to mean:

“A trade, an industry, a profession or an employment, and includes any activity carried on by a

body of persons, whether corporate or unincorporated, but does not include farming on land.”

Security of Tenure under the Act

Security of tenure is secured under section 4 of the Act.

Tenancy May Come to an End by Notice to Quit Given by Tenant, Surrender and Forfeiture

In terms of section 4(2) of the Act, the provisions of section 4(1) (excerpted above) shall not

prevent the coming to an end of a tenancy by a notice to quit given by the tenant, by surrender or by

the forfeiture of a superior tenancy. Another situation where the current tenancy will come to an

end without the tenant having the right to apply for the grant of a new tenancy is where the parties

renew the tenancy by agreement. This is provided for under section 9 of the Act.

Termination of Tenancy by Landlord

Section 5 (1) of the Act provides for the termination of the tenancy by the landlord.

In order to have effect, the notice to quit should be given not less than six months and not more

than twelve months before the date of termination specified.

As for the reasons for the requirement in subsection 6 of section 5 that the landlord must state in his

notice on which of the grounds mentioned in section 11 he intends to rely, Romer L.J when dealing

with the 1954 English Landlord and Tenants Act (on which the Zambian Act is largely based on),

in the case of Betty’s Cafes Ltd v. Philips Furnishing Stores Ltd (1959) AC 20, observed that:-

“The matter will ultimately come before the Court and it is obviously right that the tenant should

know in advance what is the case that he will have to meet at the hearing…. It is, I think, intended

to be in the nature of a pleading and its function, as in all cases of pleadings, is to prevent the other

party to the issue from being taken by surprise when the matter comes before the Judge.”

Tenant’s Request for a New Tenancy

Section 6 of the Act deals with the tenant’s request for a new tenancy. A tenant’s request for a new

tenancy may be made where the tenancy under which he holds for the time being (current tenancy)

is a tenancy granted for a term of years certain and thereafter from year to year.

Grounds of Opposition to the grant of a new Tenancy available to the Landlord

The grounds on which a landlord may oppose an application for a new tenancy are set out in

section 11 of the Act. A landlord can only rely on the ground(s) stated in his notice to quit under

section 5 of the Act. According to the decision in the case of Apollo Refrigeration Services Co.

Ltdv. Farmers House Ltd (1985) ZR 182 a successor in title may rely on the ground(s) stated by

his predecessor. The court will grant a new tenancy unless the Landlord establishes one or more of

the statutory grounds of opposition.

According to Section 12(1), if the landlord succeeds in his opposition to the application for a new

tenancy, the Court should dismiss the application.

Compensation Where Order For New Tenancy Precluded On Certain Grounds

Section 19 of the Act provides for compensation to the tenant in certain cases where the Court is
precluded to grant a new tenancy (following an application under section 4) on the grounds spelt

out under paragraphs (e) (f) and (g) of section 11(1) of the Act. The grounds of opposition under

the said paragraphs (e), (f) and (g) of section 11(1) of the Act excerpted above (i.e. more valuable

as a whole, demolition or reconstruction and own occupation respectively) are similar in that they

are all for the landlord’s benefit.

Restrictions on Agreements Excluding Provisions of the Acts

Section 20 of the Act provides for restrictions on agreements excluding the provisions of Act.

Determination of Rent by Court in Certain Instances

Section 28 of the Act provides one important protection afforded to the tenant. The section allows

an aggrieved tenant to apply to court for determination of rent.(As amended by Act No. 13 of 1994)

It may be noted here that unlike under the Rent Act which requires that standard rent should be

determined by the Court, (the duty to apply is placed on the landlord) before letting or within three

months of letting, the Landlord and Tenant (Business Premises) Act only allows an aggrieved

tenant to apply for determination of rentals within three months of the letting.

Distress for Rent

Unlike the Rent Act, the Landlord and Tenant (Business Premises) Act is silent on the issue or

aspect of distress for rent. This was observed and stated in the case ofPaperex Limited v

DelukHigh School Supreme Court Appeal No. 141 of 1996 (SC)by Ngulube C.J, as he then was.

The term ‘distress’ mainly connotes a summary remedy by which a person is entitled without

legal process to take into his possession the personal chattels of another person to be held as a

pledge to compel the performance of a duty, the satisfaction of a debt or demand or the
payment of damages for trespass by cattle. The common law right of distress for rent in arrears is a

right for the Landlord to seize whatever movables he finds on the demised premises of which rent

or service issues and to hold them until the rent is paid or the service performed. This position was

made in the case of Lyons v. Elliot (1876) 1 QBD 210.

In Re Kamaya (1987) ZR 7, the High Court of Zambia held that an applicant for a certificate as

certificated bailiff must show, as a fit and proper person that he is fully conversant with the law of

distress and the procedure to be adopted in levying a distress.

THE LANDS ACT (CHAPTER 184 OF THE LAWS OF ZAMBIA)

The genesis or background to the 1995 Lands Act lies in the Movement for Multiparty Democracy

(MMD) Government’s liberal economic policy. In its campaign manifesto of 1990, the MMD

promised to liberalize 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 emergence of the private land market.

Salient Provisions of the Act

From the preamble the primary objectives of the Act are to provide the following:

(a) the continuation of leaseholds and leasehold tenure;

(b) the continuation of vesting land in the President and alienation of land by the President;

(c) to provide statutory recognition and continuation of customary tenure;

(d) to provide for the conversion of customary tenure into leasehold tenure;

(e) to establish a land development fund and a lands tribunal; and

(f) to repeal the following Acts;

(i) The Land (Conversion of Titles) Act,

(ii) The Zambia (State lands and Reserves) Order 1924 to 1964

(iii) The Zambia (Trust land) Orders 1947 to 1964

(iv) The Zambia (Gwembe District) Orders 1959 to 1964, and

(v) The Western Province [Land and Miscellaneous] Provisions Act 1970

Definitions

Section 2 of the Act defines “customary area” as the area described in the schedules to the

(repealed) Zambia (State lands and Reserves) Orders-1928 to 1964 and the Zambia (Trust land)

Orders 1947 to 1964. In other words, reserves and trust land were merged and are now known as

customary area.

Section 2 further defines ‘land’ to mean “any interest in land whether the land is virgin, bare, or

has improvements, but does not include any mining right as defined in the Mines and Minerals Act

in respect of any land”. This definition has indeed conferred value to bare or virgin land. Under the

1975 Act, virgin or bare land had been excluded under the definition of land. This, we saw, was

done in order to safeguard land from speculation, exploitation or generally making profit on bare

land.

‘State land’ is defined under section 2 to mean land which is not situated in customary area. It can

therefore be said that there are two types of land or tenures under the 1995 Lands Act, namely,

state land (statutory tenure) and customary area (customary tenure).

Vesting of Land in The President, Powers To Alienate Land And Administration Of Land

The 1995 Lands Act has continued the practice under the 1975 Act of vesting land in the President.

Section 3 (1) of the Act provides for the continued vesting of land in the President.

Section 3(2) of the Act provides that the President may (subject to sub section (4) and to any other

law) alienate land vested in him to any Zambian.

Section 3(3) of the Act spells out the circumstances under which the President may alienate land to

a non-Zambian.

The instances under which a non-Zambian may acquire land have been enlarged compared with

those that existed under the 1985 Amendment to the 1975 Act.

The powers of the President to alienate land situated under customary tenure are circumscribed

under subsection 4 of section 3.

In terms of subsection 5 of section 3, all land in Zambia is required to be administered and

controlled by the President for the use or common benefit, direct or indirect, of the people of

Zambia. Although all land in Zambia is vested in the President, the day to day administration of

land is delegated to the Commissioner of Lands.

In terms of subsection 6 of section 3, the President is proscribed from granting or alienating land to

either a Zambian or non-Zambian for a term exceeding ninety nine (99) years unless he considers it

necessary in the national interest or in fulfillment of any obligations of the Republic and it is

approved by a two thirds majority of the members of the National Assembly.

Conditions on Alienation of Land and Presidential Consent

Under section 4(1) of the Act, the President is proscribed from alienating any land to either a

Zambian or non-Zambian without receiving any consideration in money for such alienation and
ground rent for such land except where the alienation is for public purposes. The instances of

public purpose are listed under section 4(2) of the Act. However, where a person would wish to

convert his customary holding to leasehold tenure, no consideration shall be paid for such

conversion.

Section 5(1) provides that a person shall not sell, transfer or assign any land without the consent of

the President and shall accordingly apply for that consent before doing so. It should be noted here

that unlike section 13 of the 1975 Act, which required Presidential consent for any transaction or

dealings in land, section 5(1) of the 1995 Act only requires Presidential consent in cases of sell,

transfer, or assignment of land.

Section 5(2) provides that where a person applies for consent and the consent is not granted within

forty-five days of filling the application, the consent shall be deemed to have been granted. This is

yet another improvement when compared to the 1975 Act where no time limits within which to

grant consent were prescribed.

In terms of subsection 3, of section 5, where the President refuses to grant consent within thirty

days, he shall give reasons for his refusal. This is a further improvement when compared to the

1975 Act where the President was under no legal obligation to give reasons for refusal to grant

consent. A person aggrieved with the decision of the President to refuse consent may within thirty

days of such refusal appeal to the Lands Tribunal for redress (Section 5(4)). This is yet another

welcome improvement when compared to the 1975 Act, where the President’s powers or decisions

in relating to the grant of consent could not be challenged in any court or tribunal.
Customary Holdings to Be Recognized and To Continue

Section 7(1) of the Act provides that every piece of land in a customary area which was vested in

or held by any person under customary tenure before the commencement of the Act is to continue

to be so held and recognized under the Act. Thus, the rights and privileges of any person to hold

land under customary tenure are recognized and the application of customary law to such holding

is not to be construed as to infringe any customary right enjoyed before the commencement of the

Act.

Conversion of Customary Tenure into Leasehold Tenure

In terms of sections 8(1) of the Act, a holder of land under customary tenure may convert it into

leasehold tenure not exceeding ninety nine years on application by way of:

(a) A grant of leasehold by the President;

(b) Any other title that the President may grant; and

(c) Any other law.

Section 8 (2) provides that the conversion of rights from customary tenure to leasehold tenure shall

have effect only after the approval of the chief and local authorities in whose area the land to be

converted is situated. Subsection 3 of section 8, further provides that no title other than a right to

the use and occupation of any land under customary tenure claimed by a person, shall be valid

unless it has been confirmed by the chief and a lease grantedby the President.

Prohibition of Unauthorized Occupation of Land

Section 9(1) provides that a person shall not without lawful authority occupy or continue to occupy

vacant land. Section 9(2) provides that any person who occupies land without a lawful authority is

liable to be evicted.
Renewal of Leases

Section 10 makes it mandatory for the President to renew the lease upon expiry for a further 99

years where he is satisfied that the lessee has complied with or observed the terms, conditions or

covenants of the lease and the lease is not liable to forfeiture. In the event that the President does

not renew the lease, the lessee is entitled to compensation for the improvements made on the land.

‘Improvements’ are defined under section 2.

Re-Entry

Section 13 of the Act provides circumstances under which the President may re-enter.

The Land Development Fund

Section 16(1) of the 1995 Lands Act established a Land Development Fund. Section 16 (2)

provides for what the fund shall consist of.

Sections 17(1) vests the Fund in the Minister responsible for finance and is managed and

administered by the Minister responsible for land. Section 18(1) provides that the fund is required

to be applied to the opening up of new areas for development of land. A council that wishes to

develop any area in its locality may apply to the fund for money to develop the area (Section

18(2)).

Dispute Settlement: The Lands Tribunal

Section 20(1) of the 1995 Lands Act, establishes a lands tribunal. This is an innovation when

compared to the 1975 Act which did not provide for a mechanism of settlement of disputes arising

from the exercise by the President of his powers under the (1975) Act. The Tribunal was created as

a forum for speedy adjudication of land disputes as well as a way of reducing the cost of litigation

in land matters. Section 20(2) of the Act provides for members that the Tribunal shall consist of

upon being appointed by the Minister. Section 22 provides for the jurisdiction of the tribunal.
THE URBAN AND REGIONAL PLANNING ACT (No. 3 of 2015)

This is an Act to provide for development, planning and administration principles, standards and

requirements for urban and regional planning processes and systems; provide for a framework for

administering and managing urban and regional planning for the Republic; provide for a planning

framework, guidelines, systems and processes for urban and regional planning for the Republic;

establish a democratic, accountable, transparent, participatory and inclusive process for urban and

regional planning that allows for involvement of communities, private sector, interest groups and

other stakeholders in the planning in the planning, implementation and operation of human

settlement development… The Act repeals the Town and Country Planning Act, 1962, and the

Housing (Statutory and Improvement Areas) Act, 1975.

Salient Provisions of the Act

The preamble to the Act generally provides the scope and objectives of the Act. The said preamble

is partly as highlighted above in the introduction.

Principles and Standards for Urban and Regional Planning

Section 3 (1)

Inconsistencies Between Acts

Section 4

Planning Management and Administration

Section 6

Regional Planning Authorities

Section 9
Functions of Regional Planning Authorities

Section 10

Planning Permission

Section 49

Planning Appeals Tribunals

Section 62 - 63

Planning Controls and Compensation

Sections 64 – 70

Unit summary

In this unit you have learnt about the statutory, registration, control and land use in Zambia. You

have also learnt about the salient provisions of each of the Act discussed in the chapter including

how each one of them assist in the registration, control and use of land in Zambia.

Activity:

 Briefly discuss what the main purpose of the Lands and Deeds Registry Act is.

 Explain how the Rent Act protects a tenant.

 Outline the salient provisions of the Landlord and Tenant (Business Premises) Act.

 Clearly state the significance of the Lands Act to land regulation in Zambia.

 Outline the process involved in making an application for ‘change of use’ of a property in

Zambia.

 Briefly discuss the main purpose of the Urban and Regional Planning Act.