LAND LAW

HISTORICAL BACKGROUND

The first people to acquire land in Zambia were mineral prospectors and
they acquired land through two sources firstly, through mineral
concessions with chiefs, and secondly through the decentralisation of
North Eastern Rhodesia as a protectorate. In North Western Rhodesia the
landuse the land was acquired through mineral concessions with
Traditional Authorities, and the first to come was made that he be entitled
to mine in land authorized, and in exchange, he had to offer British
protection and pay loyalties. The British South African Company bought
the concessions from H. Ware but because they weren’t happy with H.
Ware so they sent Frank Lochivar to negotiate and many of the
concessions were incorporated in Lochivar concession because the
traditional authorizes had hoped that the British government would send
soldiers to help in the protection against enemies from the south. The
B.S.A Co. however alienated the land although they had no such rights.

In North Eastern Rhodesia on the other hand the company claimed titles
to the land through the declaration of North East Rhodesia as a
protectorate under the 1899 orders–in–council. The question is whether
the declaration of the protectorate conferred of the administrative
authority in the ownership of land, and this was finally resolved in the
Southern Rhodesia [in the application of 1919 act 211-law report].

And in this case the Privy Council held that the declaration of the
protectorate did not vest land in the crown. So if the crown wanted land it
would have passed legislation to that effect and hence it was only in 1928
when the order-in-council created reserves was passed that the crown
owned land (Crown Land).

COLONIAL LAND POLICIES

The land policies were passed on a belief that there would be lots of white
settlers hence certain land was reserved for the anticipated settlers and the
other land for Africans. However, the settler farmers relied on Africans
for their labour, they were few and there was competition between
African farmers and settler farmers. All this resulted in the BSA Co.
handing over administration power to the British colonial office including
the rights over land although rights over minerals remained with the
company. In 1928 an order-in-council was passed which created native
reserves, and crown land. Although the land was meant exclusively
for native use pressure from settlers especially missionaries forced the
government to make allowances for non-natives to be granted leases in
these reserves. The settlers favored this move because they did not want
to have neighbors who had no knowledge of using the land.

PROBLEMS CREATED BY ESTABLISHMENT OF RESERVES

1. Insufficient access to the rail line – this meant that Africans

could not produce excess for sell
2. Most areas were inhabitable due to the absence of water supply and
the presence of tsetse flies as a result there was congestion and
overcrowding. As for the land left for the natives was largely un-
occupied, this becomes vacant for the settlers were fewer than
anticipated hence land with rich soils was left uninhabited whilst
natives occupied small reserves with generally poor soils.

The problems created by reserves led to the formulation of a new land

policy in 1938, under which trust lands were created. The native trust
land was vested in the colonial secretary of state and it comprised land set
aside for the exclusive use of the natives. The native trust land is
differentiated from a native reserve by the duration of an interest to a
non-native. Non natives in reserves can be granted an interest up to 5
years only where as in trust land such an interest may be up to 99 years
such an interest in the trust land is a right of occupancy whereas in
reserve land it is called reserve lease. The land policy was finally
implemented by the 1947 order-in-council.
CROWN LANDS

These were the lands available for non-native settlements and mining and
covered all land with rich soils and all land along the line of rail as for the
tenure (conditions under which land is held) the choice was between lease
hold and freehold. The two systems of land tenure, freehold and lease.

FREEHOLD TENURE - The period for holding land is not prescribed

and the rights continue forever under freehold to the owner.

LEASE HOLD – The period of tenure is fixed for a certain period of

time and the rights ceases after that period of time.

Advantages of freehold tenure

1) It gives greater tenure security, in lease hold one cannot make long
term investment.
2) Lending institutions give more loans to freeholds than leaseholds
3) Leaseholds describe terms which have to be followed whereas
with freehold there is complete freehold ownership

Disadvantages

1) The government does not force any development initiatives and

hence the land held under freehold may not develop their land
waiting for it to increase in value so that they can sell it at a
higher profit
2) The question of land fragmentation – a piece of land is divided into
smaller unviable portions and as a result families on these portions
cannot do any project or programme on very small pieces of land.

In 1924 the then Northern Rhodesia governor, he was for freehold

arguing that settlers would be prevented from exploiting the soils fast
before going back to their homes, however, the successor was for lease
hold and his argument was that freehold was not conducive for
agriculture development in that freehold. Freehold title give the holder
the right to deal with the land in any way without restriction. The
Northern Rhodesia legislative council supported Maxwell’s policy and
hence from 1931 the land along the line of rail could be alienated on
leasehold tenure only. Other recommendations were that the term for
leases should be as long as freehold title and hence agriculture leases
were to be of three types.

a) long term leases for 99 years

b) Short term leases to be for 30 years

Leases for small holdings to be for 99 years – As for long term

leases the provision was to be made for minimum amount of
development to be carried out within a specified time. So in 1947
the trust lands order–in-council was passed to set the trust land
policy in motion.

THE CONCEPTS OF TENURE AND ESTATES

Tenure comes from ‘tenere’ which means to hold, and estate is a piece of
land however in this context it means the length of someone’s interests in
a particular piece of land. In English law the concept of absolute
ownership of land (dominion) does not exist. The crown owns all land
and everybody else has a lesser interest.

Land Ownership has various sides to it. Important among the various
facets is Title to land, a term indicating the legal right to land. Tenure
refers to the conditions upon which land is held. The duration of a
tenancy of land (i.e. the maximum time before which the tenancy must
come to an end) is termed as estate for which the tenant holds the land.
The conditions or services in return for which land is held tells the nature
of tenure by which the tenant holds the land. Under freehold estate there
exist 3 types-:

1) Fee simple estate

2) Fee tail estate
3) Life estate

Fee relates to interests that can be held and capable of being inherited.

Fee Simple: a fee without limitation to any class of heirs; they can sell it
or give it away.

Fee Tail: a fee limited to a particular line of heirs, they are not free to sell
it or give it away.
Estate Pur Autre Vie- this refers to life estate but here the measure
doesn’t count on the life of tenant but on a condition that it will be
granted to a person as long as another one lives.

ESTATES

Estates can be held in three types of ways

1) Estates in possession - here there is entitlement to immediate

possession although not ownership
2) Estate in remainder – here you get the remainder after another
interest has expired
3) Estate in reversion – here the land reverts to the owner after
another’s interests have expired

ALIENATION: To alienate property means to transfer to someone else.

LAND OWNERSHIP: A simple and not uncommonly assumed use of

the term ownership is to describe a relationship between a person (the
owner) and a thing (the object of ownership) in which the owner has
every possible right in the thing in the most absolute degree.

Various schools of thought define ownership differently. The Roman Law

based systems consider ownership in a concept known as dominium. This
is where the relationship between the owner and the object of ownership
in which the owner has every possible right in the item in the most
absolute sense.

The English Law based systems on the other hand are generally
characterized by the consideration of ownership as consisting of a bundle
of rights over land of which any selection may be detached and given to a
person other than the owner.

However, despite the differences in conceptual approach certain

tendencies in behavior as regards ownership remain constant in both the
Roman and English Law systems. For instance an individual who owns a
pen will have the right to write with it or lend it out but at no time has he
the right to poke it into another person’s eye. This illustration of
ownership rights and restrictions are universal, and shared by most legal
systems whether being Customary, Common Law based, Roman Law
systems.
A.M. Honore’ in Oxford essays in Jurisprudence suggest a liberal concept
of ownership as a series of rights and incidents as follows;
1. Right to possess
2. Right to use
3. Right to manage
4. Right to income of the thing
5. Right to capital
6. Right to security
7. Right to incident of transmissibility
8. Absence of term
9. Prohibition of harmful use
10.Liability to execution
11.Incident of residuarity

(Right to possess: This is the privilege to hold or keep property by the

owner. This is the right to exclusively control the land i.e. exclude other
people from entry. This right may be exercised in a physical way to
prevent other people from entry on property.)

Honore’ further comments that the above listed may be regarded as

necessary ingredients in the notion of ownership. But they are not
individually necessary though they may together be sufficient conditions
to designate ownership of an item in a given system.

Objectively speaking land is not capable of being owned in the most

absolute sense. That is, you cannot own land and do as you wish with it
without regard to other living beings. In this respect even the English
system smartly avoids the direct connotation of owning land, but rather
uses owning an estate in land.

‘Ownership’ is a word derived from a very simple term ‘own’, defined by

the pocket oxford English dictionary as: Not another’s

The Roman legal based systems correctly defines ownership in dominium

as the unrestricted, and exclusive control which a person has over an item
of ownership. However, whether this concept can be extended to be used
over land is a matter of serious debate as land is a universal property
which cannot be subject to absolute private ownership. It belongs to all
living things, plants and animals. By virtue of their existence, all living
things are entitled to some space, somehow, somewhere on earth. And it
is not necessary that for any living being to exist it must first own some
space to live on, on the face of earth. Nature has never acknowledged
absolute private ownership of land, it is in actual fact is based on
interdependence of systems. The fact the living exists naturally gives
them a right to live somewhere on land, and their existence does not
depend on whether they own land or not. They cannot be excluded from
land and get thrown into outer space for instance if the world gets
completely owned by limited people. Land like fresh air and water, as
necessity of life is fungible (not capable of being owned) and as such it
falls into a category of thing that are common to all (res communes).

Land as a shared property will always create condition where other living
beings will constantly impose restrictions onto the so called ‘land
owners’.

NATURE OF ESTATES OF FREEHOLD

In practice the fee simple owner is the actual owner of the land although
his legal rights are less than those of the absolute owner. This is shown
by-:

a) the right of alienation , i.e. the right to transfer to another the

whole or any part of the interest in land
b) the right of ownership to everything in, on, or over the land

THE RIGHT OF ALIENATION

The fee simple owner has the same right as the actual owner and hence
independent to dispose of his land to anybody he deems fit. He is under
no obligation to any third party apart from those he contracts with there
is however a regulatory limitation vested in the stall which tempers
with freedom of the owner In the land e.g. a statute may prohibit him
from building a home somewhere on his land.
THE RIGHT OF EVERYTHING IN, ON OR OVERLAND

The general rule is that he who owns the soil is presumed to own
everything up to sky and down to the centre of the earth cujus est solum
ejus est usque ad colum et ad inferors. He is entitled to possession of any
chattel not the property of any known person which is found under or
attached to his land. But this does not apply to temporary chattel merely
resting on the surface.
EXCEPTIONS TO THE GENERAL RULE

1) AIR SPACE – Intrusion into the air space above land is a trespass
and often also a nuisance. Aircrafts enjoy a wide dispensation
under the civil aviation act Cap 704 Section 7 of the act provides
that no action shall lie in respect of trespass or nuisance by reason
only of the flight of aircraft over property at a height which is
reasonable under the circumstances, otherwise there must be
previous notice to the owner or occupier of the land.

2) MINERALS – These are vested in the president by mines and

minerals act Cap 329.

3) WILD ANIMALS – At common law wild animals are not subjects

of ownership, the owner has a qualified right in them in that he has
the exclusion right to hunt and put then to his own use but as soon
as they fall dead they belong to the land owner even if killed by a
trespasser. Under the national parks and wild life act cap 316, they
belong to the president

4) WATER- Act common law a fee simple owner has no property in

water whether it percolates under the surface of his land of
percolating water the land owner may draw off, any or all of it
without regard to claims of neigbors. In case of water flowing
through a defined channel, the riparian owner can always take all
the water but he has certain variable right first of all he has the
sole right to fish in the water he is entitled to the ordinary and
reasonable use of the water flowing over the land. Under the
water Act Cap 312, Section 5 vests ownership of all water in the
president provided the land owner has the right to take free of
charge the water he may need for his own primary, secondary or
territory use. Primary use refers to domestic purposes and annual
life. Secondary use is for irrigation of land. Tertiary use is for
mechanical and industrial purposes or for generation of power.
THE EXTENT TO WHICH THE DOCTRINE OF TENURE &
ESTATE APPLY

Under section 4 of land conversion of Titles Act 1975 all land in Zambia
is vested in the President. However, 99% of land had already been vested
in the head of state under the orders-in-council.
Section 31-2 of the Lands and Deeds Registry Act Cap 287, abolishes the
existence of fee tail in Zambia.

Section 5 of the Lands Conversion of Titles Act converts all freehold

estates of a term beyond 100 years to statutory leases of about 100 years.
Under customary land tenure chiefs have interests in the control, whilst
individuals have interests of use.

FIXTURES

The maxim ‘Quic Quid Plantatur Soloso Credit’ which means what is
fixed or attached to the land becomes part of the land. There are two
elements which have to be considered, firstly is the degree of annexation,
there must be substantial connection with the land or building on it.
Secondly, is the purpose of annexation? This infact is the main factor in
that the degree of annexation is regarded as being of an importance as
same as evidence of purpose. The rule is that articles not other wise
attached to the land than by their own weight are not to be considered as
part of the land unless the circumstances show that they were to be so. On
the contrary articles are fixation. To the land even slightly are to be
considered as part of land unless there is evidence to the contrary. if the
purpose of fixation is to improve the land then they are fixtures but if
the purpose is for decoration or enjoyment then it’s a mere chattel. if
the removal of the thing may cause damage either to the thing itself or to
the land then one can safely say it has been attached as part of the land
even if the person who fixed the thing is the land has no titles to the
land itself it will still be considered as a fixture and cannot be removed.
The general rule is that all fixtures attached by the tenant, become the
landlord’s fixtures however there are certain exceptions to the rule.

i) If it’s a chattel the tenant can remove it anytime but if it is a fixture

you cannot have the right to remove it.
ii) Trade fixtures -: These attached for the purpose of trade or
business may be removed at anytime during the term but not long
afterwards

iii) Ornamental fixtures -: if they are for the purpose of improving the
land, then they are irremovable but if they are there for ornamental
purposes, they may be removed e.g. flower vessels and certain
paintains etc., these are also removable.

iv) Agriculture fixtures -: These are treated like trade fixtures

These exceptions were intended to encourage industrialisation.

LAW AND EQUITY

CONCURRENT INTERESTS

This can take various forms namely joint tenancy, tenancy in common,
corpacennary and tenancy by entities.

JOINT TENANCY

The distinguishing factors of a joint tenancy are as follows-:

1) The right of survivorship i.e. Jus accrescendi- it means that on

death of one joint tenant his interests in the land passes to the
other joint tenant and does not pass to the deceased descendants.
The joint tenant who survives becomes the sole tenant and the right
of survivorship operates notwithstanding the existence of the will.
The only way a joint tenant can alienate his interests to another
is by reversing the tenancy by inter vivos (= transfer of an
interest in land whilst you are alive) [ converting the interest of a
joint tenant to interests of tenants in common to allow your
interest to pass to somebody upon death]
2) There must be the four units in existence namely (vis a vis) unity of
inter unit of possession, unit of time and unit of title.