CHAPTER TWELVE

LAND REFORMS IN THE SECOND REPUBLIC – THE LAND

(CONVERSION OF TITLES) ACT.

12.0 Introduction.

At independence, Zambia retained both the colonial categorization of

land, and the two regimes of land tenure. i.e statutory and customary
tenures. Even if a Land Commission was appointed shortly after
Independence in November 1964 its recommendations, contained in its
report of 1967, were not implemented.
The uncertainty in the country’s land policies continued until 30 th June
1975, when President Kaunda in his address to the 6 th United National
Independence Party (UNIP) National Council at Mulungushi Rock of
Authority, Kabwe, announced far reaching changes to the country’s land
tenure system1. The changes were made against a background of land
speculation (especially of bare land) and manipulation of property prices.
Speculation in land had become rampant after independence and was
exemplified by one case which President Kaunda in his speech, not only
described it as mere profiteering, but also insanity. The case involved the
sale of a vacant plot of land at the present Development Bank of Zambia
(DBZ) site opposite Lusaka City Council Library. The parties to the
transaction were Solar Investments (Z) Limited and DBZ. By a conveyance
dated 3rd April 1975, one George Louis Lipschild of Lusaka sold to Solar
Investments Limited three plots, each less than a quarter of an acre, at a
total consideration of K 150,000. On the same day, 3 rd April 1975, by
another conveyance made between Solar Investments and DBZ one of the
three plots was sold for the sum of K100,000 to DBZ. President Kaunda in
his speech directed Solar Investment to give back to DBZ the money
already paid to them for the plot and that the vacant plot was to be
immediately taken over by the state. President Kaunda further ordered
the sacking of those involved in negotiating the deal.

12.1 Land Reforms Announced By President Kaunda

1
See Address by His Excellency the President Dr. K.D.Kaunda to the National Council of the United
National Independence Party, Mulungushi Hall, Kabwe, June 30- July 3, 1975 – President Kaunda’s speech
has since become known as the Watershed speech.

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 Among the land reform measures announced by President Kaunda which
were to take effect immediately were2:

(1) Farm land

All freehold titles to land and all land held by commercial farmers
under freehold title was converted to leasehold of 100 years.
Unutilized tracts of farmland were with immediate effect to be taken
over by the State.
(2) Land in Residential Areas in Cities and Towns.
Freehold titles to land in urban areas were also converted to leasehold
for 100 years effective from 1st July 1975. No more undeveloped land in
urban areas was to be sold apart from developments on the land. All
vacant plots and undeveloped land in and around Lusaka and all other
cities and towns were to be taken over by local authorities.
(3) Real Estate Agents
All real estate agencies were closed down. These were identified as
largely responsible for inflated prices of land and housing.
(4) Rent Control measures
President Kaunda identified the area of provision of rent as a field
where there was extensive exploitation of the common man.
Individuals were banned from building houses for rent.
The question of accommodation was to be left to the State, with its
institutions like the Party, Central Government, Local Government,
Parastatal Organisations and Co-operatives.
All rented buildings owned by individuals whose value or cost had
been realized were to be taken over by local authorities.
(5) Control of Unplanned Townships.
Local Authorities were to see to it that no unauthorized buildings
were erected within their areas of jurisdiction.

12.2 Theoretical Justification of The 1975 Land Reforms

The 1975 land reforms were largely influenced by UNIP’s socialist

ideology, the Philosophy of Humanism and President Kaunda’s
perception of the African traditional conception of land ownership.
Mvunga has observed that the whole tenet of the 1975 reforms hinged on
President Kaunda and his Party’s thinking that land must remain the
property of the State, a position or premise which in no way departed
from the traditional heritage3. In relation to land, UNIP’s conception of
land owning, which was based on the ideology of Humanism, was that
land was to remain the property of the state.
Kaunda claimed:-

2
Ibid., pages 43-47.
3
Mvunga, M.P, land law and policy in zambia, Gweru: Mambo Press, 1982, p.86.

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 “ land obviously must remain the property of the state today. This in no way
departs from our heritage. Land was never bought. It came to belong to
individuals through usage and the passing of time. Even then the chief and
elders had overall control although this was done on behalf of all the people4.
Kaunda further observed:-

“We humanists categorically state that not a centimeter of land, nor

indeed any natural resources, should be owned by an individual. An
individual or groups of individuals may be leased land by the State or other
form of community government ….the law of the land must be specific so that
we can work out a system of land reform so that land ownership reverts to the
society as a whole …we must….establish a new order… one in which land is
not subject to machinations of merciless speculators and manipulators. It is
the most sacred and indeed the most highly priced of all natural resources in
God’s creation and it must therefore be made available to all on equal terms5.”

Mvunga has criticized the above exposition of the African conception of

land owning as not adequately reflecting on the African concept of land
ownership6. Mbao has observed that “implicit in Kaunda’s observations is the
view that the predominance of group interest in land, be they tribal, clan lineage
or family militated against individual acquisitiveness and extreme inequalities in
land holding. While this was generally true in most agrarian systems it didn’t
preclude individual ownership of substantial and exclusive proprietary interests
and rights in Land.7”

The African concept of land holding is dealt with under chapter twenty of
this book.

12.3 Salient Provisions of the Land (Conversion of Titles) Act

The Land (Conversion of Titles) Act was the legislation that was to
implement the land reforms announced by President Kaunda in his
Watershed Speech. Even if the Act was passed on 19 th August 1975, it was
deemed to have come into operation on the 1st of July, 19758. This was
obviously in line with President Kaunda’s announcement and order that
the land reforms he announced on 30 th June 1975, were to take effect from,
‘one second past midnight’ of the 1st July,1975.

4
Kenneth K.D, Humanism in Zambia and a guide to its Implementation, part Two, Lusaka: Government
Printer, 1974, p.14
5
Ibid pages 33-34.
6
supra note 3.
7
Mbao, M.L. “Public Land Ownership and Development Controls and their Implications for Accessibility
to Urban Land in Zambia”, in Lesotho Law Journal, Volume 5, 1989, no 2.
8
See Preamble to the Act as well as Section 2 of the Act.

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12.3.1 Objectives of the Act

The preamble to the Act provided that it was an Act to provide for:-

(a) the vesting of all land in Zambia in the President

(b) for the conversion of titles to land
(c) for the imposition of restrictions on the extent of agricultural land
holdings
(d) for the abolition of sale, transfer and other alienation of land for value
(e) and for matters connected with or incidental to the foregoing.

12.3.2 Section 4-Vesting Clause – State Ownership of All Land in Zambia

Section 4 of the Act vested all land in Zambia in the President. The section
provided:
Notwithstanding anything to the contrary contained in any other law,
deed, certificate, agreement or other instrument or document, but subject
to the provisions this Act, all land in Zambia shall vest absolutely in the
President and shall be held by him in perpetuity for and on behalf of the
people of Zambia.
The theoretical justification for vesting land in the state has been
discussed above. Section 4 implemented, by way of legislation, the
thinking that land must remain the property of the State.

12.3.3 Section 5 – Conversion of Freeholds into Leaseholds

Section 5 abolished freehold tenures and replaced them with statutory

leasehold for a maximum period of one hundred years, renewable,
commencing on the 1st July 1975. Section 5 enacted:-

Every piece or parcel of land which immediately before the

commencement of this Act was vested in or held by any
person –
(a) absolutely, or as freehold or in fee simple or in any other
manner implying absolute rights in perpetuity; or
(b) as a leasehold under a lease granted or deemed to have
been granted by or held of the President for a term or years
extending beyond the expiration of one hundred years from
the date of commencement of this Act;
is hereby converted to a statutory leasehold and shall be deemed to
have been so converted with effect from the 1st July, 1975.

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 Section 6 of the Act provided for the creation of leasehold by operation of
the law. The Section provided that:-

A person whose rights over and interests in any land have

become converted to a statutory leasehold under section five
shall, as from the date of commencement of this Act, hold
such land, as if he has been granted lease thereof by the
President for a term of one hundred years commencing the
1st July, 1975, at such rent and on such terms and
conditions and with such covenants as may be prescribed

No compensation was payable by the President or by any other person in

respect of the conversion of the nature of title in land or in respect of
extinguishment, restriction or abridgment of any rights or interests in or
over land resulting from the operation of the Act.9
Section 7 provided for renewal of statutory leases on expiry by effluxion
of time for a further period of 100 years unless the lessee failed to comply
with or observe any term, condition or covenant of the lease, where the
non-compliance or non observance was such as to render the lease liable
to forfeiture. Where the statutory lease was not renewed, the statutory
leaseholder was entitled to compensation only for the “unexhausted
improvements.”10

12.4 Bare Land - No Value

One of the reforms announced by President Kaunda in his Watershed

Speech, as noted above, was that there would be no more sales of vacant
and undeveloped land in urban areas. Section 7 (2) which provided for
compensation only for unexhausted improvements and not bare land
per se in the case of non renewal of lease, was in line with the general
notion under the Act that undeveloped or bare land had no value.
This is further seen under section 10 of the Act which implicitly provided
that bare land per se had no commercial value in that mortgages, charges
and trusts could only operate on and against unexhausted improvements
on the land.
Section 10 of the Act provided that :-

Any mortgage, charge, or trust subsisting over land immediately

before the commencement of this Act shall, on such commencement
operate only on and against the unexhausted improvements on the
9
See section 19 of the Act.
10
‘Unexhausted improvements’ were defined under Section 3 to mean “Anything resulting from the
expenditure of capital or labour and includes carrying out of any building, engineering or other
operations in, on over or under land, or the making of any material change in the use of any building or
land.”

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 land and, so far as regards land apart from the unexhausted
improvements, shall be deemed to be extinguished.

It has been observed that section 10 reflected the view that land was a gift
from God and could not be bought and sold and especially made the
subject of speculation by inhuman exploiters. 11 The other provision which
implicitly provided that bare land had no commercial value was the
proviso to section 13 (3) of the Act, which provided that the President in
fixing the maximum consideration under the subsection, should not pay
any regard to the value of land apart from the unexhausted improvements
thereon.

12.5 Section 13 – Presidential Consent for All Transactions or Dealings in

Land.

Section 4 of the Act vested the land in the President for and on behalf of
the People of Zambia. Section 4 was supplemented by Section 13 which
provided for the prohibition of any transaction or dealing in land without
presidential consent. It has been observed that the requirement of prior
presidential consent offered the government the opportunity to monitor
dealings or transactions in land to ensure compliance with stated policies
or goals.12
Section 13 of the Act provided:-
(1) Notwithstanding anything contained in any other law, or in
any deed, instrument or document, but subject to the other
provisions this Act, no person shall subdivide, sell,
transfer, assign, sublet, mortgage, charge or in any manner
whatever encumber, or part with the possession of, his land
or any part thereof or interest therein without the prior
consent in writing of the President
(2) The President may in granting his consent under
subsection (1) impose such terms and conditions shall be
binding on all persons and shall not be questioned in any
court or tribunal.
(3) Without prejudice to the generality of subsection (2), the
President may, in granting the consent under subsection
(2), fix the maximum amount that may be received,
recovered or secured –
(a) in the case of a disposition by sale, transfer or
assignment, as the price, premium or consideration;

11
Mbao, M, supra note 7 at page 399.
12
Kaunda, M, “Ownership of Property Rights in Land in the First Two Republics of Zambia: An
Evaluation of Restrictions on Free Alienation and some Lessons for the Future.” Zambia Law Journal
Volume 21-24 1989-92- page 67.

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 (b) in the case of a disposition by way of a sublease,
as premium, consideration or rent;
(c) in the case of a license to occupy, by way of
premium, consideration or rent or, as the case may,
be by way of periodical payments for use and
occupation;
(d) in the case of a mortgage or charge, as a debt or
advance:
Provided that in fixing any amount under this
subsection no regard shall be had to the value of the
land apart from the unexhausted improvements
thereon.

Section 13 of the Act generated a great deal of litigation. The courts

interpreted the requirement of presidential consent as a condition
precedent to any dealing or transaction in land no matter how minute and
struck down transactions which did not comply with the section. This
section is discussed below under the segment dealing with case law.

12.6 The 1985 Amendments To The Land (Conversion Of Titles) Act -

Restriction of Alienation of Land to Non Zambians

Initially, the Land (Conversion of Titles) Act did not provide for any
distinction whatsoever in the eligibility of Zambians and non -Zambians
to acquire land in Zambia. In 1985, Parliament amended section 13 of the
Land (Conversation of Titles) Act in order to restrict the ability of
non-Zambians to acquire land in Zambia. The background leading to the
amendment was that Government had granted about 20,000 hectares of
land in Chiawa area to a foreign owned company that was to grow wheat
for local consumption and other crops for export. Following a public
outcry which was provoked by the grant, one Member of Parliament
moved a motion in the National Assembly for the Government “to exercise
care in the allocation of Land” and proposed the revocation of the grant. The
grant was opposed on the following grounds:-
(a) The inconvenience to the local people who were to be displaced as a
result of the grant;
(b) The possibility of illegal export of Government trophy since the land
allocated bordered a game management area;
(c) The threat to national security since the land bordered Zimbabwe;and
(d) The amount of land granted was too large for a new company with
unproven experience in the proposed agricultural venture.13

13
See Verbatim reports of Parliament Debates, Columns 1849-50, 1854 (20 February 1985).

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 Though the Government opposed the motion, it lost when the same was
put to a vote. The grant was later rescinded by Government. After these
events, Parliament enacted the Land (Conversion of Titles) Act
(Amendment) [No.2] Act No. 15 of 1985 with the aim of restricting
non-Zambians from acquiring land.
The principal Act was amended by the insertion, immediately after section
13, of the following new section:-

13A. (1) No land in Zambia shall, as from the 1 st April,1985, be

granted, alienated, transferred or leased to a non-Zambian:

Provided that nothing herein shall be so construed as to affect

any interest or right acquired by any person prior to that date.

(2) subject to complying with any other provisions and procedures

relating to the alienation of Land or the obtaining of consent of the
President, a non-Zambian shall be exempt from the provisions of
subsection (1) under the following circumstances:-
(a) If it is a person who has been approved as an investor in
accordance with the Industrial Development Act or any
other law relating to the promotion of investment in
Zambia;
(b) if it is a non-profit making charitable, religious,
educational or philanthropic organization or institution
which is registered and is approved by the Minister for the
purposes of this section;
(c) If the interest or right in question arises out of a lease,
sub-lease, or under-lease, for a period not exceeding five
years, or tenancy agreement;
(d) if the interest or right in land is being inherited upon
death or is being transferred under a right of survivorship
or by other operation of law;
(e) if the President has given his consent in writing under
his hand.

(3) For purposes of this section, “non-Zambian” means-

(a) in the case of an individual, a person who is not a
citizen of Zambia;
(b) in any other case, a person who does not qualify as a
Zambian in accordance with regulations made by the
president by statutory instrument.

12.7 Critique of The Land (Conversion of Titles) Act

199
 A number of criticisms have been levelled against the Land (Conversation
of Titles) Act. Mulimbwa has identified the defects in relation to section 13
of the Act to be:-
(i) the lack of regulations governing the determination of prices, premiums or
rent;
(ii) the absence of an appellate system, such as a land tribunal to which
aggrieved parties could appeal decisions of the Commissioner of Lands
whose office had delegated authority to exercise the powers of the President
in matters pertaining to land;
(iii) the absence of enforcement provisions for contravening the section, as with
the rest; and
(iv) administrative delays in processing applications for consent14

Kaunda has identified the following weaknesses under the 1975 Act15.

(i) The system of granting consent was arbitrary in the sense that there were
no guidelines for its exercise;
(ii) The system of consent led to delays of transactions as a result of
understaffing at the Ministry of lands;16
(iii) The Act’s inadequate definition of unexhausted improvements. Though
the literal interpretation covered all expenditures, in practice certain
expenditures such as service charges and surveyor’s fees were not
recoverable;17
(iv) The official regulation of income from land led to underhand dealings and
corruption;18
(v) Lack of guidelines for determination of valuations for purposes of fixing
considerations for various transactions in land;19 and the
(vi) Absence of appellate system under the Act.20

Another general criticism levelled against the 1975 Act was against the
principle or notion that bare or undeveloped land had no value.

12.8 Case law

(a) If prior Presidential Consent was not obtained for any transaction or
dealing in land, the whole contract was unenforceable.
14
Mulimbwa, A.C. “Land Policy and Economic Development in Zambia”, in Zambia Law Journal, Special
Edition,1998 P.85.
15
Kaunda, M. “Ownership of Property Rights in Land in the First Two Republics of Zambia: An evaluation
of Restrictions on Free Alienation and some Lessons for the Future.” Zambia Law Journal Volume 21-
24, 1989-92, P 62.
16
Ibid, at p 68.
17
Ibid, at P 69.
18
Ibid.
19
Ibid, at P 70.
20
Ibid.

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Mutwale V Professional Services Limited (1984) ZR 72 (SC)

In Mutwale V Professional Services Limited a landlord sublet a flat without

prior presidential consent to a tenant who throughout defaulted in paying rent.
When the landlord sued for arrears, the High Court entered judgment for the
landlord for the sum claimed, saying that the failure to obtain presidential
consent could not nullify the agreement. On appeal to the Supreme Court, it was
held that if prior presidential consent was not obtained for a sublease, the whole
contract including the provision for payment of rent was unenforceable. The case
is excerpted below.

Gardner,J.S This is an appeal against a judgment of the High Court awarding the respondent K5,000.00 in respect of
arrears of rent for a flat in Ndola.

The facts adduced on behalf of the respondent consisted of the evidence of PW.1 the General Manager of the
respondent company who said that in December, 1978, he was approached by one Lufungulo, First Secretary at the
Zairean Consulate, with a request to rent a flat for a friend. On behalf of his company PW. 1 agreed to sublet one of the
flats which the respondent company held as tenants from a superior landlord. PW. 1 said that the agreed rental was
K200 per month subject to three months notice and the rent was to be paid to Motza Limited, rent collectors. PW. 1
gave evidence that Lufungulo assured him that the tenant would be responsible for payment of the rent but he,
Lufungulo would ensure, that the rent was paid regularly. The appellant took possession of the flat in December 1978,
until she vacated it in January 1981, and no rent was ever paid. PW. 1 in his evidence said he was under the
impression that rent was being paid to the rent collector and it was only when a claim was made against the
respondent company that he realised that no rent was being paid. He said that he first realised this in November 1980,
and a letter was then written from the respondent company to the appellant requesting her to vacate the flat due to
nonpayment of rent. Correspondence then ensued, including a letter from the Zairean Consulate, and the appellant
vacated the premises at the end of January 1981, without having settled the claim for arrears or rent.

PW. 1 stated that he agreed to sublet the flat on behalf of the respondent company and he did not obtain consent from
the State for the subletting because, he said, the agreement was not supposed to be permanent.

The appellant gave evidence which confirmed she had occupied the flat because Lufungulo was her husband. There
was some discrepancy in the appellant's evidence as to whether Lufungulo had told her that no rent was payable for
the flat because he was a friend of PW. 1, or whether Lufungulo told her that he had paid rent in advance for two
years. From the general evidence the learned trial judge came to the conclusion that the appellant was the girl friend of
Lufungulo who was married to another woman.

In her Defence the appellant did not raise the question of the lack of consent to the subletting; but it was argued before
the learned trial judge, who held that, as the Land (Conversion of Titles) Act 1975 did not state that any dealing in land
made without the President's consent would be void and unenforceable, he was unable to agree that the agreement
was void ab initio.

The grounds of the appellant's appeal related to the question of whether Lufungulo was her agent who entered into the
tenancy on her behalf, whether she accepted liability for the rent by any correspondence she had written or instigated
and whether a contract for payment of rent could be enforceable in view of the fact that no consent had been obtained
from the President in accordance with section 13 (1) of the Land Conversion of Titles Act 1975.

Mr Kafunda on behalf of the appellant argued the last point as to lack of consent first.

Section 13 (1), of the Land Conversion of Titles Act reads as follows:

201
 "13. (1) Notwithstanding anything contained in any law or in any deed, instrument or document, but subject to
the other provisions of this Act, no person shall subdivide, sell, transfer assign, sublet, mortgage, charge, or
in any manner whatsoever encumber, or part with the possession of, his land or any part thereof or interest
therein without the prior consent in writing of the President."

Mr Kafunda maintained that the legislation was intended to prohibit the exploitation of tenants by requiring that all
tenancy agreements must have Presidential consent and that, a contract without consent amounted to a contract to
commit an illegal act and was therefore unenforceable. He referred the court to the case of Re. Mahmoud and
Ispahani21, in which case the plaintiff agreed to sell and the defendant to buy linseed oil. By a statutory order then in
force, it was illegal to buy or sell or otherwise deal in linseed oil unless both parties had a licence. The defendant did
not have a licence and it was held that, irrespective of the parties' state of knowledge about the existence of a licence,
the contract was illegal and unenforceable by either, since both were prohibited from making it and the prohibition was
for the benefit of the public.

Mr Mwanawasa on behalf of the respondent argued that the contract for the subletting was not void ab initio and the
agreement as to payment of rent was enforceable. He drew the court's attention to the fact that section 13 (1) reads in
part:

". . . no person shall subdivide et cetera his land without the prior consent in writing of the President . . ."

It was Mr Mwanawasa's contention that the reference to "his land" referred to the land of a beneficial owner and not to
a tenant who was effecting a sub-tenancy. In the present case it was argued that the respondent company is itself a
sub-tenant of a superior landlord and the flat was not the respondent's land but the land of the superior landlord.

Mr Mwanawasa further argued that there were criminal consequences for breaches of the Act and it would be proper to
impose criminal sanctions where necessary rather than to find that the contract was void ab initial, which was not the
intention of the parties. It was further pointed out that section of the Act contains a provision that all agreements et
cetera made before the publication of the Act but not registered before the 1st of July, 1974, shall insofar as they relate
to land be null and void ab initio. This, said Mr Mwanawasa, indicated that the legislature in one section intended to
provide that certain agreements would be void ab initio and the omission of any such provision in section 13 (1) was an
indication that the legislature had no such intention in respect of that section. Mr Mwanawasa relied on the guide to
construction:

"expressio unis est exclusio alterius".

In arguing that the Act is meant for the security of the public and not the security of the individual tenant, Mr.
Mwanawasa submitted that, when a statute is passed which touches on some common law principle "there is no
presumption that the statute is intended to override the common law" and "it is a sound rule to construe a statute in
conformity with the common law rather than against it, except where and so far as the statute is plainly intended to
alter the course of common law". (Cited from Craies on Statute Law (7th Edition) at pp. 339 and 340).

In connection with Mr Mwanawasa's argument that the prohibition against subletting without consent related solely to
beneficial owners of property, he defined beneficial owner for the purpose of such argument as a leassee holding direct
from the State or an assignee of such a lease. Apart from the wording of the statute there is no external aid to the
construction of the section in favour of Mr Mwanawasa's argument. We cannot see that it is an abuse of the language
for land held by a subleassee to be referred to during the term of the sublease as "his" land. On the contrary, to limit
the effect of the section as suggested by Mr Mwanawasa would defeat the object of the section. Whatever the ultimate
object of the section may be, it is clear that it is intended that, after the passing of the Act, the State shall have control
of transactions relating to land.If it were possible for a first lessee to obtain consent to sublet property to a limited
company controlled by himself or indeed to any third party, and thereafter for such company or third party to be at
liberty to sublet the property to whomsoever and at whatsoever rental they desired without obtaining Presidential
consent, the provision that the original subletting required consent would be pointless. We have no hesitation in finding

21
[1921] 2 K.B 716.

202
that the word "his" in section 13 (1) of the Act refers to any person having any legal estate in land at the time of a
proposed transfer of parting with possession.

So far as Mr Mwanawasa's argument that criminal consequences for breaches of the Act would be more appropriate
than regarding transactions as void and unenforceable is concerned we observe that no criminal sanctions are
provided for by the legislation, and can find no authority for the proposition that,, in civil transactions governed by
statute, penal remedies are preferable to civil ones. This argument does not assist Mr Mwanawasa's desired
construction of the section.

So far as the reference to the common law is concerned we entirely agree with Mr Mwanawasa and the authorities to
which our attention has been drawn that there is no presumption that a statute is intended to override the common law
and that it is a sound rule to construe a statute in conformity with the common law. The latter part of this proposition is
of course qualified as Mr Mwanawasa fairly pointed out by the words in Craies " except where and so far as the statute
is plainly intended to alter the course of common law." There is no doubt that the common law allows parties to enter
into contracts concerning land, provided that they are not illegal or immoral, but the Act with which we are dealing
expressly forbids dealing with land without Presidential consent and to this extent is plainly intended to alter the course
of common law.

With regard to the argument that section 15 of the Act contains a specific provision that certain agreements relating to
land shall be null and void ab initio, whereas no express words are included in section 13 it is noted that section 15
relates to agreements which were not legally forbidden before the 1st of July, 1975, and it was necessary for the
legislature to make special provision for such previously legal agreements. In the same way the Land and Deeds
Registry Act (Cap. 287) by section 6 provides that any document not properly registered within the time specified shall
be null and void. In that case, prior to the passing of the Land (Conversion of Titles) Act, perfectly legal contracts could
be entered into, but if they were not registered within a specific time limit they were statutorily held to be void. The
same situation does not arise with contracts relating to land which are entered into without the prior consent of the
President. No such contracts could at any time be legal and it would be otiose for the legislature to provide that
contracts which by law must not be made will be null and void if they are made.

We bear in mind the comments made by the learned authors of Chitty on Contracts (25th Edition) at paragraph 1147
(2) were it is said:

"1147 (2) The courts have also been reluctant to find contacts unenforceable because the illegality doctrine
operates in an all or nothing way and there is no proportionality between the loss ensuring from non-
enforcement and the breach of statue. . .

and in the same paragraph -

The courts have also been sensitive to the fact that non enforcement may also result in unjust enrichment to
the party to the contract who has not performed his part of the bargain but who has benefited from the
performance by the other party . . . "

The apparent injustice that might in some cases ensue is mitigated by the fact that a person who unwittingly breaches
a statute as a result of the fraud of another party, may have an alternative cause of action for breach of warranty or
deceit as the case may be. No such circumstances exist in this case. The failure to obtain consent was solely because
apparently the respondent company did not think that it was legally necessary to do so.

We find therefore that as the purported subletting by the respondent was without prior Presidential consent as required
by section 13 (1) of the Land (Conversion of Titles) Act 1975, the whole of the contract, including the provision for
payment of rent, is unenforceable. The appellant having succeeded on this ground there is no need to consider the
other grounds of appeal.

The appeal is allowed with costs to the appellant in this court and in the court below.

203
(b) Summary of other cases involving Section 13 (1) of The 1975 Act.
The courts have had occasion before and after the Mutwale case to interpret the
effect of section 13 of the 1975 Act on the various dealings in land. In Attorney
General V Zambia Sugar Co. Ltd and Another, 22 the High Court held that a
debenture creating a floating charge over assets of the company which included
land required prior written consent of the president under Section 13(1) of the
1975 Act.
In Hina Furnishing Ltd V Mwaiseni Properties Limited 23, the High Court held,
inter alia, that without presidential consent under section 13(1) of the Lands
(Conversion of Titles) Act, no legal estate or interest in the demised premises was
conveyed to the Plaintiff tenant. In Naik and Naik Motors Ltd V Chama, 24
it
was held that the prohibition against letting premises without presidential
consent applied primarily to the landlord in the absence of any wrongdoing on
the part of the tenant, and it was therefore for the landlord to obtain Consent and
to suffer from any illegality arising from failure to obtain such consent. A tenant
who was not in default himself did not lose the protection of the Rent Acts, as a
result of a landlord’s failure to obtain presidential consent.
In Mufalo V Nganga25, the Supreme Court held that there was nothing to prevent
parties entering into contracts for the sale of land conditionally upon the
obtaining of presidential consent under section 13 (1) of the Land (Conversion of
Titles) Act. In Mpashi V Avondale Housing Project Limited26, the Supreme Court
dispelled the misconception that section 13 of the Land (Conversion of Titles) Act
operated to prohibit absolutely the entering into contracts by purchasers and
vendors conditionally upon obtaining of Presidential consent.

22
(1977) ZR 27.
23
(1983)ZR 40.
24
(1985) ZR 227.
25
(1988/89) ZR 88.
26
(1988/89) ZR 140.

204
In Mundanda v Mulwani and others , 27 in an appeal against refusal to grant an
order for specific performance of a contract of sale of land, the Supreme Court
held, inter alia, that:-
(i) the application for permission to subdivide and presidential consent
are not matters which are usually expected to be the subject of
litigation, uncertain or otherwise, and the need to obtain such consent
is not in itself a ground for refusing to grant an order of specific
performance. Since the court cannot make orders which it cannot
enforce, parties applying for the specific performance of contracts for
the sale of land should come to court with evidence that if the order
they seek is made in their favour, all necessary consents will be
granted .
(ii) the legal performance of a possibly illegal contract is enforceable.
The position that no land should be granted, alienated transferred or leased to a
non-Zambian after 1st April 1985, except as provided for under amendment Act
Number 15 of 1985, was affirmed by the Supreme Court of Zambia in the case of
GF Construction (1976) Limited V Rudnap (Z) Limited and Another.28
All the cases cited above dealt with land under statutory tenure. It was not until
the case of Siulapwa V Namusika29, that the High Court was presented with an
opportunity to consider the effect of the 1975 Act on land held under customary
tenure. The case is excerpted below.

(c) In so far as section 13 of the 1975 Act provided no exception, all types of dealings in land, including the
sale of a village hut, had to comply with it.

Siulapwa V. Namusika – (1985) ZR 21

[The facts appear from the judgment of Commissioner C.M. Musumali].

This is an appeal against a decision of the learned magistrate at Mbala. The facts of the case are that in September
1983 the respondent sold a house to the appellant at a price of K1,000.00. Before selling the said house to the said
appellant a condition was given to him by the said respondent. This condition was that the house was not to be bought
for one Pearson Silumbwe as he was an objectionable character to the respondent.

27
(1987) ZR 29.
28
(1999) ZR 134.
29
(1985) ZR 21.

205
After buying the said house, the appellant stayed there for a short while. After that he moved out and let his cousin, the
said Pearson Silumbwe, to occupy it. Upon the respondent learning of that, she sued the appellant to court for the
purposes of rescinding the contract of sale of the house and paying back the K1,000.00 to the appellant because she
was cheated, she says, by the appellant who did not buy the house for himself and with his own money, but did so for
Pearson and using Pearson's money. As already stated, judgment was entered on her behalf.

In the course of arguing this appeal before me a number of issues were raised by counsel for the parties. In the view
that I have taken, which will become apparent in the course of this judgment, I will not deal with all those issues. I
propose to only deal with two issues which have an immediate bearing on the outcome of this appeal.

Mr Siame raised the first such issue. In his submissions the learned counsel quoted from page J2 line 1 of the learned
trial magistrates judgment as follows:

'I should at this stage make a mention that from the beginning of the proceedings in this case, this court had been
trying to advise and persuade the defendant to take occupation of the house and ask his cousin to vacate but he has
refused to do so. He has been evasive and unco-operative.'

The learned counsel then submitted that the foregoing quotation suggests that the learned magistrate had already
reached a decision from the very beginning. He went on and argued that a decision had been reached in the matter
well before even evidence was adduced. Replying to Mr Siame's submissions on this point, Mr. Chama for the
respondent said that it was his submission that he was in total agreement with Mr Siame that the comments were very
unfortunate. He went on and said that if such or those comments were made in a criminal case, they would entitle the
person appealing to an acquittal.

He then submitted that the case now before this court is a civil one. As such the comments of the learned magistrate
should not entitle the appellant to succeeding, as the decision arrived at was the correct one in so far as our laws are
concerned. If this court finds that these comments went to the root of this case, he went on, the proper order would be
that of retrial of the matter. A retrial order would not be the proper order in this case as there was no consent obtained
pursuant to the provisions of section 13 of the Land (Conversion of Titles) Act, Cap.289, he contended.

After a careful consideration of the evidence, the judgment and the two learned counsel's submissions in this case, I
have found that the comments of the learned magistrate quoted above give the impression that he had decided the
case well before hearing and considering the evidence. With due respect to the learned magistrate, it is clear from his
own words that he had taken it upon himself to begin advising the appellant that he should order his relative to vacate
the house. That was not a proper thing for him to have done; because by so doing he was clearly siding with one of the
parties to the dispute which was before him for hearing and determination without favour or appearing to favour any of
the parties. What the learned magistrate did, went beyond the role a judicial officer can play in promoting a
reconciliation between the parties. Promoting a reconciliation between the parties does not entail the telling of one of
the parties to the dispute what to do or not to do. It means that the parties should be allowed time to discuss the matter
between them selves amicably. The court should never be involved in such discussions because it has to be
appreciated that the parties may fail to arrive at an amicable solution. When that happens the matter would then have
to be litigated upon in a court of Law. Now if the judicial officer who would be required to preside over the hearing of
such a dispute would have participated in the efforts of reconciliation, he would inevitably have exhibited agreement to
some degree with one of the parties to the dispute. As a human being there is no way he could avoid showing in one
way or the other his agreement or disagreement with one of the sides to the dispute. Now immediately that happens,
he ceases to appear to be impartial in the matter. And when it comes to his deciding of the matter in a court of law, no
matter how flawless his decision might be, it will not be viewed as an impartial decision as it would have been viewed if
he had not been involved in the reconciliation discussions. Judicial officers i.e. Local Court Justices, Magistrates and
Judges should always remind themselves of the maxim: Justice must not only be done, but be seen to be done. This
principle should in fact be the guiding principle of all people or organs of our society whose functions involve the
hearing and determination of disputes, complaints and/or accusations before they make decisions in favour of one
party against the other. In this particular case because of the stand taken by the learned magistrate, justice was not
seen and could not be seen to have been done. It is my view that justice which is not seen to be done or could not be
seen to have been done is no justice at all. With due respect to the learned magistrate in his handling of this case
Justice was not done. I would therefore allow the appellant's appeal on this ground. This then brings one to the

206
question: What is the proper order to make in this case in view of this finding? Mr Chama, as already stated contended
that retrial would not be the most ideal order in this case as it had been conceded by the other party that the State
consent under section 13 (1) Cap. 289 was not obtained. As such, in view of the Supreme Court's decision in Mutwale
v Professional Services Ltd30. The transaction in question was illegal and thus null and void. This argument makes it
imperative for me to first determine it before deciding what order should be made in this judgment.

Mr Chama’s full arguments on this issue were that the main issue this court has to decide in this case is whether or not
the property in issue is arrested under the provisions of The Land (Conversion of Titles) Act 10 Cap. 289. If it is
arrested under that Act, the learned counsel went on, then the whole transaction was a nullity and the respondent is
then entitled to have possession of the property and to keep the K1,000 paid for its price. If on the other hand this court
finds that the provisions of Cap. 289 do not arrest the said property, then the appeal must succeed, he said.

To show that the house in question falls within the provisions of Cap. 289 Mr Chama went on with his submissions and
said that section 5 of that Act converted all land in the Republic which was governed by the English tenure system into
statutory leasehold of 100 years. Section 20 of the same Act provides that all land referred to in section shall not be
occupied without lawful authority. This, went on the learned counsel clearly showed that the legislature had in mind the
distinction that existed before the passing of this Act. But notwithstanding that knowledge, the same legislature then
provided in section 13 of the said Act that no land should be dealt with without the consent of the President. Mr
Chama then went on and submitted that this court in its ruling in the case of Zambia Oxygen Limited v Gardner Bros
Limited31 and the Supreme Court in its judgment of Bridget Mutwale v Professional Services Ltd. Have held that any
transaction relating to land without the consent of the President is null and void. Since there was no State consent
issued in this case this appeal should be dismissed, submitted Mr Chama.

Mr Siame on the other hand started his submissions on this question by asking the question: Is this proper case for
which these authorities cited by Mr Chama regarding compliance with The Land (Conversion of Titles) Act, Cap. 289
should apply? His answer to this question was that this was not the kind of case the legislature had in mind when
passing the said Act. He went on and said that the legislature did not address their mind to village houses which fall
within the Chief's jurisdiction. It would be unthinkable, the learned counsel went on, to expect the Commissioner of
Lands and his officers to control the sale or transfer of properties in villages particularly those in remote areas. The
house in question, he said, is village a house. For the law to have expected a villager to make an application to the
Commissioner of Lands for the sale of his house, and expect the Regional Valuation Officer who is based in Kitwe to
travel to Mbala to valuate the house in question before he could make his report is something that the legislature never
thought of. The kind of house in question does not have house number, plot number, diagram, sketch plan and title
deeds. In the absence of all these things, one wonders where any valuation surveyor would start from. He went on and
submitted that this question of State consent did not arise in the court below, and that in any case it was the
respondent's job to have applied for one. I would start my examination of the two learned counsels' submissions on
this issue by stating that it is irrelevant as to who between the parties had the duty to apply for a State consent under
section 13(1) of Cap. 289, as to the question of what the legal consequences are with non-compliance to that section.
As long as there is no such consent the transaction entered into is illegal and unenforceable altogether i.e. it is void ab
initio. This will take care of Mr Siame's last submission that it was the respondent's duty to have applied for consent.

Section 13(1) of the Land (Conversion of Titles) Act, Cap. 289 provides as follows and I quote:

'13 (1) Notwithstanding anything contained in any other law or in any deed, instrument or document, but
subject to the other provisions of this Act, no person shall subdivide, sell, transfer, assign, sublet, mortgage,
charge or in any manner whatsoever encumber, or part with the possession of, his land or any part thereof or
interest therein without the prior consent in writing of the President.'

The wording of this subsection has not made any exception to any kind of land. According to this subsection every kind
of land whether it was freehold land prior to 1st July, 1975 or not falls within its provisions. This means that even
ordinary villagers in some very remote parts of this country have to apply for State consent if they propose to deal in
land. Land here includes a house.
30
(1984) ZR 72.
31
(1982/HN/809) (Unreported.)

207
Now examining the history of why it was deemed necessary to pass this piece of legislation, one finds that it was not
meant to cover every kind of land tenure other than the former freeholds which under section 5 of Cap. 289 were
converted into statutory leaseholds. When it came to drafting the necessary legislation every type of land was
embodied .My own view is that it is not possible for some classes of people in this country to comply with the Act in
question. This is because their systems of land tenure are and have been typically traditional and have not known the
kind of procedure covering the British type of land ownership where we derive our land tenure system provided for
under the Lands and Deeds Registry Act, Cap.287 and other related pieces of legislation. The other problem which
would come in with the making of Cap. 289 applicable to all types of land tenure is the very exorbitant charges
attendant on conveying matters. Many villagers would not be able to afford the charges. There is also the general
problem of the Act, i.e. Cap 289 greatly inconveniencing the rural populace who normally and convenient just make
representations to their chiefs regarding requests for land and once the chief grants their requests, they get the land or
part of it asked for and they settle on it or begin tilling it as their land. It is my considered view that in enacting the Land
(Conversion of Titles) Act. Cap. 289, the draftsman ought to have excepted land held other than by former freeholds.
But whatever the consequences of an Act of Parliament the duty of this court is to construe what it says and not "to
modify the language of an Act of Parliament in order to bring it into accordance with (my) own views as to what is right
or reasonable" as the learned author says at page 91 second paragraph of Craisie on Statute - Law 17th Edition. That
same author at page 90 second paragraph says and I quote:

'Where the Language is explicit, its consequences are for Parliament and not for the courts to consider. In such a
case the suffering citizen must appeal for relief to the lawgiver and not to the lawyer.'

And earlier on at page 87 the same learned author had the following to say in the second paragraph and I quote:

' . . . where the words of an Act of Parliament are plain the court will not make any alteration in them because injustice
may otherwise be done. "Where the language of an Act is clear and explicit, we must give effect to it whatever may be
the consequences, for in that case the words of the statute speak the intention of the legislature."

The wording of The Land (Conversion of Titles) Act and especially section 13 subsection 1 is plain and unambiguous.
If the wording had been ambiguous and one construction of those words or that Act leads to a lot of inconveniences
and another construction does not, the one which leads to least inconveniences would be preferred. But in a case like
the one in issue namely the provisions of section 13(1) of Cap. 289, where there is no ambiguity in the wording, this
court, as can be seen from a very long chain of authorities which have been dealt with in Craies on Statute law dealing
with the interpretation of statutes the court has and must as a matter of duty interpret what the legislature has enacted,
the consequences of that interpretation notwithstanding .

I for one am a very firm proponent of the doctrine of separation of powers. It is my very strongly held view that at no
point in time should that separation be interfered with. The three arms of a democratic Government namely, the
legislature, the judiciary and the executive should be left to function independently in the fullest sense of the words 'left
to function independently.' Thus much as I may have reservations regarding the wording of section 13 (1) Cap. 289 in
so far as it provides for no exceptions to its provisions of land previously held and/or to be held otherwise than as
freeholds or statutory leaseholds respectively my task is to interpret what has actually been enacted by that section.
According to that section all types of dealings in land in this country after 1st July, 1975 have to comply with it. This
means that the sale of the house in question was illegal and void ab initio as there was no State consent obtained
before entering into that sale. What this means is that the parties are taken back to where they started from before the
illegal sale i.e. that the house in question belongs to the respondent and the K1,000.00 paid by the appellant to the
former to the latter. As an illegal transaction courts of law would not have anything to do with it. Thus although the
appellant would have succeeded on the ground earlier discussed in this judgment, the matter cannot be ordered to be
retried before another court of competent jurisdiction because of the illegality surrounding the transaction.

It is clear that the learned High Court Commissioner decided the matter by
applying the literal rule of interpretation to section 13(1) of the Land (conversion
of Titles) Act as it related to the definition of Land. This decision has been a

208
subject of criticism. Kaunda32 has argued that the decision was questionable to
the point of being untenable. In his opinion the literal rule of interpretation as
applied in the Siulapwa case led to absurdities. The reason advanced is that title
to land under customary tenure is not registrable at the Lands and Deeds
Registry and if transactions in customary land were subject to state control
through the requirement of state consent it would be difficult for the state to
monitor them. Kaunda further argued that the court could have avoided the
absurdities to which the literal rule led if it had followed the golden rule of
interpretation. According to Kaunda, the court following the golden rule of
interpretation would have held “that ‘land’ as used in Section 13(1) meant land
under statutory tenure in contradistinction to land held under customary tenure”. He
went on to further argue that the mischief rule of statutory interpretation would
have avoided the absurdities in the Court’s Judgment. He opined:-

“This rule necessitates asking:”

What was common law before the statute?
What was the mischief for which the common law did not provide?
What remedy has Parliament resolved so as to cure it?
What is the true reason of that remedy?
“After answering these questions, the duty of a judge then becomes that of
making such construction as will suppress the mischief and advance the
remedy. Knowing that the mischief that the 1975 Act sought to remedy
was exorbitant prices of vacant urban state Land, and the remedy that
Parliament had resolved so as to cure it was the system of prior written
consent together with the power of the President to fix the maximum
amount that may be received under any transaction, the court could have
quite easily held that S. 13(1) did not apply to customary land because, in
the first place, transactions in such land had not exhibited any mischief
that the 1975 Act would have sought to remedy. In the second place, it is
a recorded fact that sales of vacant land are unknown to customary land
tenure systems33.”

It would be difficult not to agree with Kaunda’s critique of the Siulapwa

decision taking inter account the whole legislative history behind the
enactment of the 1975 Act. The Government policy behind the enactment
of the Act was to control the exorbitant prices of land and attendant
speculative tendencies which were rampant in urban areas. This emerges
clearly from President Kaunda’s Watershed Speech of 1975. Further, as

32
Kaunda, M. “Application of (1) The Land (Conversion of Titles) Act to Customary Land: A Critique of
the Judgment in Siulapwa V. Namusika,” Zambia Law Journal Volume 19, 1987, p 62.
33
Ibid at pages 67-68.

209
 Kaunda noted, the absence of registration machinery for land interests
under customary tenure renders dealings difficult or impossible to detect.
Under state land there is a system of registration of interests in land under
the Lands and Deeds Registry Act 34. In complying with the registration
provisions of the Lands and Deeds Registry Act Presidential Consent
cannot be dispensed with.

12.9 SUMMARY OF CHAPTER TWELVE

This chapter has examined the land reforms undertaken by the UNIP
Government in the Second Republic. The 1975 land reforms were the first
major reforms announced after Independence in 1964. The reforms were
influenced by UNIP’s socialist ideology, the Philosophy of Humanism and
President Kaunda’s perception of the African traditional conception of
land ownership. The changes to the Country’s land tenure system were
made against the background of rampant land speculation (especially on
bare land) and manipulation of property prices in urban areas. One major
reform to the country’s land tenure system was the abolishing of freehold
tenure and converting such existing freehold tenure to a renewable
Statutory Lease of 100 years. The Land (Conversion of Titles) Act was the
legislation that was put in place to implement the land reforms announced
by President Kaunda in his Watershed Speech. The Act, under section 4
vested all land in Zambia in the President to be held by him in perpetuity
for and on behalf of the people of Zambia. Section 4 of the Act which
vested land in the president was supplemented by section 13 which
provided for the prohibition of any transaction or dealing in land without
presidential consent. This requirement for presidential consent offered the
Government the opportunity to monitor dealings or transactions in land
to ensure compliance with the stated policies or goals.

Section 13 of the Act generated a great deal of litigation. The Courts

interpreted the requirement for presidential consent as a condition
34
Chapter 185 of the Laws of Zambia.

210
precedent to any dealing or transaction in land and struck down
transactions which did not comply with the section. This has been
illustrated and/or exemplified by the cases that have been excerpted
and/or cited under this chapter.
A number of criticisms were leveled against the 1975 Act. The same have
been pointed out in this chapter. Most of these criticisms have been
addressed or taken care of under the 1995 Lands Act which is covered in
the next chapter.

211