CHAPTER TWO

OWNERSHIP OF LAND AND ITS LIMITATIONS

2.0 Introduction

It was pointed out in chapter one that there is no such thing as

absolute ownership of land under English law. All land in England
is held directly or indirectly from the crown on one of several
tenures. 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
Zambia1. 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. Riddal2 has observed
that for practical purposes the holder of a fee simple is today treated
as being the equivalent of the owner of the land but that the term
‘owner’ has not, except in common parlance replaced the term
holder of a fee simple. The word ‘owner’ or ‘ownership’ shall be
used in this chapter without losing sight of the legal position both in
England and Zambia.

2.1 The Concept of Ownership

1
See Section 3 of the Lands Act of 1995, Chapter 184 of the Laws of Zambia.
2
Riddal,J.G, introduction to land law,4th Ed, London, Butterworths 1988 p.50.
 According to Dias, ownership consists of an innumerable number of
claims, liberties, powers and immunities with regard to the thing
owned.3 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.4 Sir Pollock has defined ownership as the entirety of
powers of use and disposal allowed by law.5 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.6 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.7
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. Joint tenants possess the thing or property undivided but
have only one title to the property so that on the death of one joint
tenant the title accresces to the other or others until it is vested in
one who then becomes the sole owner. Tenants in common possess
the property in undivided shares but each has distinct title to a
determinate share which on his death passes to his representatives8.
Ownership may also be divided according to the time of its

3
Dias, R,W,M, jurisprudence, 5th ed, Butterworths, London, 1985, p.292.
4
Ibid at p.297.
5
F. Pollock (sir), jurisprudence and legal essays, selected and introduced by Goodhart, London, ST Martin
Press,1961
6
Fitzgerrad, Salmond on jurisprudence, 7th ed, London, Sweet and Maxwell, 1966, P. 277.
7
Walker, D.M the oxford companion to law, Caredon, press, Oxford, 1980, p 910 (on Ownership).
8
Co-ownership of property is covered under Chapter 4 of this book.
 enjoyment whether in possession or expectancy i.e present or
future.9

2.2 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.10 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.11

2.3 Common Law Limitations or Restrictions on Ownership

2.3.1 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 noise12.

9
See Section 1.5 of the preceding chapter – dealing with successive interests in land.
10
Hayton, D, megarry’s manual of the law of real property, 6th ed. London, ELBS, p 550.
11
Ibid at page 551.
12
See National Hotels Development Corporation [T/A Fair View Hotel] v Motala [2002] ZR 39 (S.C).
the case is excerpted under the section dealing with case law.
 (b) under the rule in Rylands vs Fletcher,13 e.g. where water
escapes

2.3.2 Gold and Silver

At common law Gold and Silver belong to the crown.

2.3.3 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.14
In Attorney General of Duchy of Lancaster V Overton Limited,15 a
hoard of Roman Coins was held not to constitute treasure trove
because they contained only small amounts of silver.

2.3.4 Wild Animals

At common law, wild animals cannot form the subject matter of
ownership.16 A land owner has, however, a qualified right to catch,
kill, and appropriate the animals on his land.17

13
[1868] LR HL 330.
14
Attorney General Vs. Trustees of British Museum [1903] 2 CH 598 at pp. 608- 611.
15
[1982] 1 ALLER 524.
16
Hayton, D, Supra note 10 at p 552.
17
Ibid.
2.3.5 Water Rights

At common law a land owner has no property in water which flows

or percolates through his land in a defined channel.18 In respect to
percolating water the owner of land is at liberty to draw water
without regard to the neighboring owner.19 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.20

2.3.6 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.21
In Lord Bernstein of Leigh Vs Sky Views and General Limited,22 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

18
Ibid.
19
Ibid.
20
See John Young and Co Vs. The Bankier Distillery Co. [ 1893] A.C 691.
21
Hayton,D, Supra note 10 p 563.
22
[1977] 2 All ER 902.
 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
Co23 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. The academic writers speak with one voice in rejecting the
uncritical and literal application of the maxim: see, by way of
example only, Winfield and Jolowicz on Tort, Salmond on Tort,
Shawcross and Beaumont on Air Law, McNair on the Law of the
Air, and Halsbury’s Laws of England. I accept their collective
approach as correct. The problem is to balance the rights of an owner
to enjoy the use of his land against the rights of the general public to
take advantage of all that science now offers in the use of air space.
This balance is in my judgment best struck in our present society by
restricting the rights of an owner in the air space above his land to
such height as is necessary for the ordinary use and enjoyment of his
land and the structures on it, and declaring that above that height he
has no greater rights in the air space than any other member of the
public. Applying this test to the facts of this case, I find that the

23
[1884] 13 QBD 904.
 defendants’ aircraft did not infringe any rights in the plaintiff’s air
space, and thus no trespass was committed. It was on any view of
the evidence flying many hundreds of feet above the ground and it is
not suggested that by its mere presence in the air space it caused any
interference with any use to which the plaintiff put or might wish to
put his land. The plaintiff’s complaint is not that the aircraft
interfered with the use of his land, but that a photograph was taken
from it. There is, however, no law against taking a photograph, and
the mere taking of a photograph cannot turn an act which is not a
trespass into the plaintiff’s air space into one that is a trespass.24

2.4 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.25
The learned authors have further observed that the enactments were
necessitated by the pressure of social and economic forces working in

24
Ibid at pp. 907-908.
25
Hayton, D, supra note 10 at p 550.
 the community.26 The statutory restrictions on ownership and
enjoyment of land in Zambia are discussed below.

2.4.1 Lands Act

The Lands Act,27 vests all land absolutely in the President who holds
it in perpetuity for and on behalf of the people of Zambia.28 All land
in Zambia is administered and controlled by the President for the
use or common benefit direct or indirect of the people of Zambia29.
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.

2.4.2 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,30 provides that the rights to all
minerals in Zambia are vested in the President.
Subsections 1 and 2 of section 3 of the Mines and Minerals Act
provide that:-

26
Ibid.
27
Chapter 184 of the Laws of Zambia.
28
Ibid section 3.
29
Ibid section 3 (5).
30
Chapter 213 of the Laws of Zambia.
 (1) All rights of ownership in, searching for, and mining and
disposing
of, minerals are hereby vested in the President on behalf of the
Republic.
(2) The provisions of this section have effect notwithstanding any
right,
title or interest which any person may possess in or over the soil
in, on
or under which minerals are found.

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.

2.4.3 Water Act

The preamble to the Water Act31 provides that it is an “Act to

consolidate and amend the law in respect of the ownership, control and use

31
Chapter 198 of the Laws of Zambia.
 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.32

Section 2 defines ‘private water’ (which a landowner is at liberty to

use as he likes) to mean:-
(a) the water in a swamp, the boundaries of which are
wholly within the boundaries of the land owned by any
one landowner and which do not cross or abut against
the boundaries of the said land and to or from which no
stream extending beyond the boundaries of the said land
flows, either continuously or intermittently;

32
Ibid section 3.
 (b) the water in a spring which is situated wholly within
the boundaries of the land owned by any one owner and
which does not naturally discharge water into a water-
course beyond the boundaries of the aforesaid land or
abutting on its boundaries;
(c) the water brought to the surface of such aforesaid land
by artificial means;
(d) flood waters which are impounded on the aforesaid land
by artificial means and would otherwise have run to
waste;
‘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.33

2.4.4 The Town and Country Planning Act

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 England34. The Town and Country
Planning legislation of England was, like a number of other statutes,

33
See sections 11 and 12 of the Act.
34
Hayton, D, supra note 10 at p. 553.
 ‘imported’ into the Northern Rhodesia Protectorate by the colonial
administration. The Town and Country planning Act35 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. Megarry and Wade have observed, in relation to social
control of land in England, that it is against the interests of the public
at large for land in England owners to have unfettered power to
develop their land as they wish.36

2.4.5 The Public Health Act (Building Regulations)

The building regulations promulgated under the Public Health Act37

are discussed in detail under Chapter Eighteen of this book. 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.

2.4.6 The Aviation Act

35
Chapter 283 of the Laws of Zambia.
36
Megarry and Wade, the law of real property, 4 th ed, London, Sweet and Maxwell, 2000, p. 1336.
37
Chapter 295 of the Laws of Zambia.
 The preamble to the Aviation Act38 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.

2.4.7 Zambia Widlife Act - Ownership of Wild Animals

Section 3 of the Zambia Wildlife Act,39 vests absolute ownership of

every wild animal40 within Zambia in the President on behalf of the
Republic. Subsections 1 to 5 of section 3 provide that:-

(1) Subject to the other provisions of this Act, the absolute

ownership of

38
Chapter 444 of the Laws of Zambia.
39
Act No. 12 of 1998.
40
A wild animal is defined under section 2 to mean: “any Animal ferae naturae, and includes any game or

protected animal, but does not include any domestic animal.”

 every wild animal within Zambia, is hereby vested in the
President on behalf of the Republic.
(i) where any wild animal, which is not a game animal or a
protected animal, is captured or killed or otherwise reduced into
possession by any person in accordance with this Act, the
absolute ownership of that animal or of the carcass of that
animal, as the case may be, is hereby transferred to and vested
in such person;
(ii) where any game animal or protected animal is lawfully
captured or killed or otherwise reduced into possession by any
person in terms of a licence issued under paragraphs (a), (b), (c),
and (h) of section thirty-three or under any authority granted
under this Act, the absolute ownership of the game animal or
protected animal or of the carcass or any trophy of those
animals, is, subject to the other provisions of this Act and to the
terms and conditions of the licence or authority, as the case may
be hereby transferred to , and shall vest in, the licensee under
the licence or the person so authorised, as the case may be;
(iii) where any wild animal is found resident on any land, the
right to harvest such animal shall, subject to such regulations
as the Minister may, on the advice of the Authority, prescribe,
vest absolutely in the owner of such land.
(2) Notwithstanding subsection (1), the absolute ownership of any
wild
animal, which has been captured or reduced into possession by
any person prior to the commencement of this Act, subject to
any other written law in force on the date of the capture of the
 animal or of its reduction into possession, is hereby declared to
be vested in the person, who, on the commencement of this Act
whether directly or through an agent, is in actual lawful
possession of the animal.
(3) Except as provided by subsection (1), nothing in this section
shall
be deemed to transfer to any person the ownership of any game
animal or protected animal which is found dying or dead, or
of any
found carcass, part of a carcass, trophy or meat or any game
animal or protected animal.
(4) Notwithstanding any other provisions of this section, if any
person hunts or reduces into possession any game animal or
protected animal in contravention of this Act, the absolute
ownership of that game animal or protected animal or of the
carcass or any trophy of the animal shall not be transferred, or
be deemed to have been transferred, to that person or to any
other person by reason of its having been so hunted or reduced
into possession.
(5) The Authority may, in writing, transfer to any person the
absolute ownership of any game animal or protected animal
which has been hunted or reduced into possession by any other
person in contravention of this Act, and such other person
shall forthwith deliver up the game animal or protected animal
to the person to whom the ownership has been transferred in
terms of this subsection.
2.4.8 Protection of Tenants – The Rent Act and Landlord and Tenant
(Business Premises) Act.

The purpose of the Rent Act41 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) Act42, 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.

2.4.9 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 Act43 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

41
Chapter 206 of the Laws of Zambia. The Act is covered under Chapter 15 of this book.
42
Chapter 193 of the Laws of Zambia. The Act is covered under Chapter 16 of this book.
43
Chapter 189 of the Laws of Zambia.
 description. The compulsory acquisition of property has to be in
public interest. Compulsory acquisition of property in Zambia is
dealt with in detail in Chapter Fourteen of this Book.

The case excerpted below which dealt with the tort of nuisance of
noise illustrates that while a land owner is free to use his land as he
feels, he has to take into account the interest of his neighbours so as
not to injure them in his enjoyment of his land. The case also
illustrates the application of the latin maxim, ‘Sic utere tuo, ut alienum
non laedas’, i.e use your own property as not to injure your
neighbour.

2.5 Case Law

National Hotels Development Corporation T/A Fairview Hotel V

Ebrahim Motala (2002) ZR 39 [S.C]

[The facts appear from the judgment of the Supreme Court delivered by
Ngulube C.J, as he then was]

This case concerns noise nuisance and the issues are whether it was wrong to find the
appellant (the defendant) liable at all and secondly, if the answer be in the negative,
whether it would be wrong to ban forever the playing of music on the terrace of the
defendant’s hotel. The parties are neighbours separated only by a road and the
respondent (hereafter called the plaintiff) complained that the playing of loud music on the
terrace more or less overlooking his house late into the night disturbed his quiet and
convenient enjoyment of his house. The defendant’s position was that the playing of music
on the terrace attracts more patrons and its absence would lead to serious financial loss.
The plaintiff testified to being thoroughly inconvenienced such that it was sometimes
impossible even to hear the dogs barking or visitors’ cars’ arriving or even to hold any
meaningful conversation. The parties called some of the neighbours, on the other side to
say they too were sufferers like the plaintiff. The parties even called experts to record the
noise levels in decibels with the defendant submitting that the plaintiff was oversensitive
and should have no cause of action. An expert on the plaintiff’s side talked of having
recorded noise levels around 81 to 88 decibels while the expert on the defendant’s side
opined that to be painful to the ear and therefore intolerable, the noise levels should be
around 120 decibels or more.

Spirited arguments and submissions were made before us to persuade us that noise
levels at less than 120 decibels should not be actionable. We are not too sure whether
noise nuisance can be reduced to decibels so that only a specific level or quantity of noise
measured in decibels should be actionable. This type of civil wrong has long been
recognized to raise questions of fact, such as whether noise disturbance which deprives a
neighbour of rest or sleep can or cannot inconvenience any other person of ordinary
firmness and sensibility. The whole position is put very well by the learned authors of Clark
and Lindsell on torts, 16th edition, paragraph 24-05 when they write:-

“In nuisance of the third kind, the personal inconvenience and interference with one’s
enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or injuriously
affects the senses or the nerves, there is no absolute standard to be applied. It is always
a question of degree whether the interference with comfort or convenience is sufficiently
serious to constitute a nuisance. The acts complained as constituting the nuisance, such
as noise, smells or vibration, will usually be lawful acts which only become wrongful from
the circumstances under which they are performed, such as the time, place, extent or the
manner of performance. In organized society everyone must put up with a certain amount
of discomfort and annoyance from the legitimate activities of his neighbours, and in
attempting to fix the standard of tolerance the vague maxim sic utere tuo, ut alienum non
laedas has been constantly invoked. But the maxim is of no use in deciding what is the
permissible limit in inconvenience and annoyance between neighbours, and the courts in
deciding whether an interference can amount to an actionable nuisance have to strike a
balance between the right of the defendant to use his property for his own lawful enjoyment
and the right of the plaintiff to the undisturbed enjoyment of his property. No precise or
universal formula is possible, but a useful test is what is reasonable according to ordinary
usages of mankind living in a particular society.”

“Whether such an act does constitute a nuisance must be determined not merely by
an abstract consideration of the act itself, but by reference to all the circumstances of the
particular case, including, for example, the time of the commission of the act complained
of; the manner of committing it, that is, whether it is done wantonly or in the reasonable
exercise of rights; and the effect of its commission, that is, whether those effects are
transitory or permanent, occasional or continuous; so that the question of nuisance or no
nuisance is one of fact.”

Respectfully, we go along with the foregoing propositions which are supported by case
authorities, as noted by the authors. In the case at hand, the Court below found as a fact
that the plaintiff suffered discomfort, disturbance and inconvenience. Admittedly, the
defendant too was not doing anything illegal as such; they too were exercising their rights
to entertain their patrons with music and to make money. Apparently, from the spirited
submissions, music on the terraces encourages patrons to come in their numbers and to
spend their money. Apparently and contrary to Mr. Wood’s submissions, it is not the same
thing if the music were to be played indoors; in some other part of the hotel, as was
suggested. However, there can be no question of killing the tort of noise nuisance for the
sake of accommodating business interest, as Mr. Wood feared.
 The problem here cannot be one of attaching or detaching liability. Quite clearly, there is
no proper ground for disturbing the lower Court’s finding of liability and the ground urged
in that behalf is successful.
However, we find that there was much merit in the ground complaining about the relief
of perpetual injunction and the apparent permanent blanket ban on the playing of music
on the terraces. The problem is one of striking a balance between the right of the defendant
to use his property for his own lawful enjoyment and the right of the plaintiff to the
undisturbed enjoyment of his property. We have lifted this phrase out of the earlier
quotation which in turn was taken from SEDLEIGH-DENFIELD-V-O’CALLAGHAN44, by
Lord Wright at p. 903. In striving to strike a balance, we are pleased to note the sensible
attitude taken by the plaintiff through his Counsel that he is not opposed to music at
reasonable levels and up to a reasonable hour. The blanket ban was too harsh and it
ignored the rights of the defendant which equally need to be recognized and protected. In
this regard, the appeal is allowed to the extent that the complete ban on the playing of
music on the terraces is set aside. Instead, there will be conditions imposed and the order
of injunction rephrased so as to permit the playing of music on the terraces up to 21.30
hours during weekdays and 22.30 hours during weekends. The times represent a
compromise between those suggesting the plaintiff to damages to be assessed on an
aggravated footing by the Deputy Registrar on application by the plaintiff. We consider that
this will address the concern that orders have in the past been continually breached.

In sum, the appeal succeeds to the extent indicated. In order to foster goodwill and a
sensible approach to the problem by these neighbors, we make no order as to costs.

2.6 SUMMARY OF CHAPTER TWO.

44
(1940) AC 880.
This chapter has examined and considered the concept of ownership
of land and its limitations. Under the doctrine of estates, the allodial
ownership of all land in England is in the crown. A subject cannot
own land per se but an estate or interest or right in the land of a
defined duration. At common law the owner of the largest estate,
the fee simple estate, is treated as being the equivalent of the owner
of land. The owner or holder of a fee simple estate had, at common
law, extensive powers of control, use, disposition and enjoyment of
the land in which his estate subsisted. In physical terms he owned
and enjoyed everything on, beneath and above the land. But even at
common law there were a number of limitations or restrictions on
ownership and enjoyment of land. It is only prudent that any society
must impose checks on such an extensive right of ownership in
accordance with the principle of the maxim sic utere tuo, ut alienum
non laedas. i.e use your own property as not to injure your
neighbour.’ In Zambia a number of statutes have eroded away
certain rights of the ‘owner’ of land at common law. These
restrictions have been put in place in order to protect the wider
interests of society and the public at large. The National Hotels
Development Corporation case, excerpted above, clearly shows the
need to impose checks on the rights associated with ‘ownership’ and
enjoyment of land so that in our ownership and enjoyment of land
we do not injure others. We need to live but also at the same time
let others live.