CHAPTER THIRTEEN

LAND REFORMS IN THE THIRD REPUBLIC-THE LANDS ACT, 1995 AND

THE PROPOSED CONSTITUTIONAL PROVISIONS RELATING TO LAND.

13.0 Introduction

The genesis or background to the 1995 Lands Act 1 lies in the Movement
for Multiparty Democracy (MMD) Government’s liberal economic policy.
In its campaign manifesto of 1990, the MMD promised to liberalize not
only the economy but also the land tenure system once in office. The
MMD promised to institute a review of the customary system of tenure,
while at the same time facilitating the emergence of the private land
market. In relation to land the MMD Manifesto provided that:-

The MMD shall institutionalise a modern, coherent, simplified

and relevant land law code intended to ensure the fundamental
right to private property and ownership of land as well as to be an
integral part of a more efficient land delivery system. To this end
an MMD Government will address itself to the following
fundamental land issues. A review of the Land ( Conversion of
Titles) Acts of 1975 and 1985, the Trust Lands and Reserves
Orders-in-Council of 1928-1947, the Land Survey Act and the
Town and Country planning Act, in order to bring about a more
efficient and equitable system of tenure conversion and land
allocation in customary lands; land adjudication legislation will be
enacted and be co-ordinated in a such a way that confidence shall
be restored in land investors; the land planning system and related
legislation shall evolve such land strategy as not only to merge
reserve and trust lands, but also to meet the varied development
needs in the country. The MMD in Government will attach
economic value to undeveloped land, encourage private real estate
agency business, promote the regular issuance of title deeds to
productive land owners in both rural and urban areas, and clear
the backlog of cadastral surveys and mapping. 2

It has been observed that by ideological commitment, the MMD

Government adopted a minimalist approach to intervention in the
economy and that in respect to land this meant removing all those
obstacles under the 1975 Act that infringed on the right of free alienation.3
1
Chapter 184 of the Laws of Zambia.
2
See Paragraph M [under Socio Economic Perspective] of the Manifesto for the Movement for the Multi-party
Democracy,1990.
3
See Kaunda, M. “Ownership of Property Rights in Land in the First Two Republics of Zambia”: “An
Evaluation of Restriction on Free Alienation and some Lessons for the Future”, in Zambia Law Journal, Volume

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 There was much resistance and opposition mainly from traditional rulers,
opposition political parties and some Non Governmental Organisations to
the enactment of a new Lands Act. The Lands Bill was first presented in
the National Assembly in August 1994 but the same was withdrawn (after
much opposition) in order to facilitate more consultation. The Lands Bill
was about a year later, in August 1995, again presented to the National
Assembly.4 The Bill was again met with fierce opposition from the
opposition members of Parliament (who even walked out during the
second reading of the Bill) who alleged that no consultations had taken
place as promised when the Bill was withdrawn the previous year.
Government, on the other hand, argued that the Ministry of Lands did
undertake consultations in the provinces to explain both the background
and the contents of the Bill as well as to solicit views and suggestions
intended to improve the quality of the revised Bill.5 In spite of the
opposition, the Land Bill was passed in the National Assembly and the
President assented the same into law on 6th September 1995.
It is a well known fact that the MMD Government was under pressure
from the World Bank and other donors to see to it that the rejected Land
Bill of 1994 was enacted into law as one of the conditions for continued
donor assistance and/or lending. As a result of this external pressure
exerted on the MMD Government no meaningful consultations with the
stake holders, including the Chiefs, were undertaken. This could perhaps
explain the continued controversy and resentment surrounding the Lands
Act of 1995 especially by or among the traditional rulers.

13.1 Objectives of The Lands Act

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

(a) the continuation of leaseholds and leasehold tenure;

(b) the continuation of vesting land in the President and alienation of
land by the President;
(c) to provide statutory recognition and continuation of customary
tenure;
(d) to provide for the conversion of customary tenure into leasehold
tenure;
(e) to establish a land development fund and a lands tribunal; and
(f) to repeal the following Acts
(i) The Land (Conversion of Titles) Act,
(ii) The Zambia (State lands and Reserves) Order 1924 to 1964
(iii) The Zambia (Trust land) Orders 1947 to 1964
(iv) The Zambia (Gwembe District) Orders 1959 to 1964, and
21-24 at page 73.
4
See the Hansard, National Assembly, Friday 11th August 1995.
5
Ibid.

244
 (v) The Western Province [Land and Miscellaneous] Provisions
Act 1970

13.2 Principal Features of The Act

13.2.1 Definitions

Section 2 of the Act defines “customary area” as the area described in the
schedules to the (repealed) Zambia (State lands and Reserves) Orders-
1928 to 1964 and the Zambia (Trust land) Orders 1947 to 1964. In other
words, reserves and trustland were merged and are now known as
customary area.

Section 2 further defines ‘land’ to mean “any interest in land whether the
land is virgin, bare, or has improvements, but does not include any mining right
as defined in the Mines and Minerals Act in respect of any land”. This
definition has indeed conferred value to bare or virgin land. It will be
recalled from the preceding chapter that under the 1975 Act bare or virgin
land did not attract any value. Under the 1975 Act, virgin or bare land had
been excluded under the definition of land. This, we saw, was done in
order to safeguard land from speculation, exploitation or generally
making profit on bare land.

‘State land’ is defined under section 2 to mean land which is not situated
in customary area. It can therefore be said that there are two types of land
or tenures under the 1995 Lands Act, namely, stateland (statutory tenure)
and customary area (customary tenure).

13.2.2 Vesting Of Land in The President, Powers To Alienate Land And

Administration Of Land.

The 1995 Lands Act has continued the practice under the 1975 Act of
vesting land in the President. Section 3 (1) of the Act provides for the
continued vesting of land in the President.

The section provides that:-

Notwithstanding anything to the contrary contained in

any other law, instrument or document, but subject to
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.

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Section 3(2) of the Act provides that the President may (subject to sub
section (4) and to any other law) alienate land vested in him to any
Zambian.
Section 3(3) of the Act spells out the circumstances under which the
President may alienate land to a non-Zambian. The subsection provides
that-:

(3) Subject to any other provisions and procedures relating to

alienation of land, the President may alienate land to a non-
Zambian under the following circumstances:
(a) where the non-Zambian is a permanent resident in the
Republic of Zambia;
(b) where the non-Zambian is an investor within the meaning
of the Investment Act or any other law relating to the
promotion of investment in Zambia;
(c) where the non-Zambian has obtained the President's
consent in writing under his hand;
(d) where the non-Zambian is a company registered under the
Companies Act, and less than twenty-five per centum of
the issued shares are owned by non-Zambians;
(e) where the non-Zambian is a statutory corporation created
by an Act of Parliament;
(f) where the non-Zambian is a co-operative society registered
under the Co-operative Societies Act and less than twenty-
five per centum of the members are non-Zambians;
(g) where the non-Zambian is a body registered under the
Land (Perpetual Succession) Act and is a non-profit
making, charitable, religious, educational or philanthropic
organisation or institution which is registered and is
approved by the Minister for the purposes of this section;

(h) where the interest or right in question arises out of a lease,

sub-lease, or under-lease, for a period not exceeding five
years, or a tenancy agreement;
(i) where the interest or right in land is being inherited upon
death or is being transferred under a right of survivorship
or by operation of law;
(j) where the non-Zambian is a Commercial Bank registered
under the Companies Act and the Banking and Financial
Services Act;
(k) where the non-Zambian is granted a concession or right
under the Zambia Wildlife Act.

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 The instances under which a non-Zambian may acquire land have been
enlarged compared with those that existed under the 1985 Amendment to
the 1975 Act.
The powers of the President to alienate land situated under customary
tenure are circumscribed under subsection 4 of section 3. The subsection
provides that:-

(4) Notwithstanding subsection (3), the President shall not alienate any

land situated in a district or an area where land is held under

customary tenure-

(a) without taking into consideration the local customary law on land
tenure which is not in conflict with this Act;
(b) without consulting the chief and the local authority in the area in
which the land to be alienated is situated, and in the case of a game
management area, and the Director of National Parks and Wildlife
Service, who shall identify the piece of land to be alienated;
(c) without consulting any other person or body whose interest might be
affected by the grant; and
(d) if an application for a leasehold title has not obtained the prior
approval of the chief and the local authority within whose area the
land is situated.

These restrictions relating to alienation of land under customary tenure

have generated a lot of controversy and litigation as will be seen under the
section dealing with case law under this chapter.
In terms of subsection 5 of section 3, all land in Zambia is required to be
administered and controlled by the President for the use or common
benefit, direct or indirect, of the people of Zambia. Although all land in
Zambia is vested in the President, the day to day administration of land is
delegated to the Commissioner of Lands6.
In terms of subsection 6 of section 3, the President is proscribed from
granting or alienating land to either a Zambian or non-Zambian for a term
exceeding ninety nine (99) years unless he considers it necessary in the
national interest or in fulfilment of any obligations of the Republic and it
is approved by a two thirds majority of the members of the National
Assembly.

13.2.3 Conditions on Alienation of Land And Presidential Consent

Under section 4(1) of the Act, the President is proscribed from alienating
any land to either a Zambian or non-Zambian without receiving any

6
See Statutory Instrument No. 89 of 1996.

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 consideration in money for such alienation and ground rent for such land
except where the alienation is for public purposes. The instances of public
purpose are listed under section 4(2) of the Act. However, where a person
would wish to convert his customary holding to leasehold tenure, no
consideration shall be paid for such conversion7.

Section 5(1) provides that a person shall not sell, transfer or assign any
land without the consent of the President and shall accordingly apply for
that consent before doing so. It should be noted here that unlike section 13
of the 1975 Act, which required Presidential consent for any transaction or
dealings in land, section 5(1) of the 1995 Act only requires Presidential
consent in cases of sell, transfer, or assignment of land. In presenting the
Bill in the Nataional Assembly the then Minister of Lands, the late Dr.
Shimaponda, said thus in Justifying the new innovation:-

To reduce the delays in allocation of land by abolishing numerous

requirements for state consents to land transaction such as to mortgage,
sublet, subdivide and to charge and by retaining the only requirements-
state consent to sell, transfer and assign8

Where a person applies for consent and the consent is not granted within
forty-five days of filling the application, the consent shall be deemed to
have been granted9. This is yet another improvement when compared to
the 1975 Act where no time limits within which to grant consent were
prescribed.

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

consent within thirty days, he shall give reasons for his refusal. This is a
further improvement when compared to the 1975 Act where the President
was under no legal obligation to give reasons for refusal to grant consent.
A person aggrieved with the decision of the President to refuse consent
may within thirty days of such refusal appeal to the Lands Tribunal for
redress10. This is yet another welcome improvement when compared to
the 1975 Act, where the President’s powers or decisions in relating to the
grant of consent could not be challenged in any court or tribunal.

13.2.4 Customary Holdings to Be Recognised and To Continue

Section 7(1) of the Act provides that every piece of land in a customary
area which was vested in or held by any person under customary tenure
before the commencement of the Act is to continue to be so held and
7
See proviso to section 4(1) of Cap 184 of the Laws of Zambia.
8
Hansard – 11th August, 1995 at p.418.
9
Section 5(2) of Cap 184 of the Laws of Zambia.
10
Section 5(4) .

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 recognized under the Act. Thus, the rights and privileges of any person to
hold land under customary tenure are recognized and the application of
customary law to such holding is not to be construed as to infringe any
customary right enjoyed before the commencement of the Act.

13.2.5 Conversion of Customary Tenure into Leasehold Tenure.

In terms of sections 8(1) of the Act, a holder of land under customary

tenure may convert it into leasehold tenure not exceeding ninety nine
years on application by way of:
(a) A grant of leasehold by the President;
(b) Any other title that the President may grant; and
(c) Any other law.

The conversion of rights from customary tenure to leasehold tenure shall

have effect only after the approval of the chief and local authorities in
whose area the land to be converted is situated 11. Subsection 3 of section 8,
further provides that no title other than a right to the use and occupation
of any land under customary tenure claimed by a person, shall be valid
unless it has been confirmed by the chief and a lease granted by the
President.

The Minister of Lands has made regulations by way of statutory

instrument which outline the procedure for converting customary tenure
into leasehold tenure12. Under the regulations, the chief is empowered to
grant or to refuse consent to convert customary tenure into leasehold.
Where the chief refuses consent he shall communicate such refusal [in
prescribed form] to the applicant and the Commissioner of Lands stating
the reasons for such refusal. Where the chief consents to the conversion he
is required to confirm [in prescribed form] that:
(a) The applicant has a right to the use and occupation of that
land.
(b) The period of time that the applicant has been holding that
land under customary tenure; and
(c) That the applicant is not infringing on any other person’s
rights13.

The chief is required to refer the application for conversion to the Council
in whose area the land that is to be converted is situated. The Council,
before making a recommendation to the Commissioner of Lands, shall
consider whether or not there is a conflict between customary law of that
area and the Act. If the Council is satisfied that there is no conflict between
11
Section 8(2).
12
See The Lands (Customary Tenure) (Conversion) Regulations-Statutory Instrument No. 89 of 1996.
13
See Regulation 2(4) of Statutory Instrument No. 89 of 1996.

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 the customary law of that area and the Act it shall make a
recommendation to the Commissioner of Lands in the prescribed form.
The Commissioner of Lands shall accept or refuse to accept the
recommendations and is required to inform the applicant accordingly. 14
Once customary tenure has been converted into leasehold tenure there is a
requirement to pay ground rent15.

13.2.6 Prohibition of Unauthorised Occupation of Land.

A person shall not without lawful authority occupy or continue to occupy

vacant land.16 Any person who occupies land without a lawful authority is
liable to be evicted.17

13.2.6.1 Renewal of Leases

Section 10 makes it mandatory for the President to renew the lease upon
expiry for a further 99 years where he is satisfied that the lessee has
complied with or observed the terms, conditions or covenants of the lease
and the lease is not liable to forfeiture. In the event that the President does
not renew the lease, the lessee is entitled to compensation for the
improvements made on the land. ‘Improvements’ are defined under
section 2 to mean “anything resulting from 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 and charges for services provided and other expenses incurred in
the development or towards the development of land.”

13.2.7 Re-Entry

Section 13 of the Act provides circumstances under which the President

may re-enter. The section provides that :

13. (1) Where a lessee breaches a term or a condition of a covenant

under this Act the President shall give the lessee three months
notice of his intention to cause a certificate of re-entry to be
entered in the register in respect of the land held by the lessee and
requesting him to make representations as to why a certificate of
re-entry should not be entered in the register.

(2) If the lessee does not within three months make the
representations required under subsection (1), or if after making
14
Ibid Regulation 3(3).
15
Ibid Regulation 5.
16
Section 9(1).
17
Section 9(2).

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 representations the President is not satisfied that a breach of a
term or a condition of a covenant by the lessee was not intentional
or was beyond the control of the lessee, he may cause the certificate
of re-entry to be entered in the register.

(3) A lessee aggrieved with the decision of the President to cause a

certificate of re-entry to be entered in the register may within
thirty days appeal to the Lands Tribunal for an order that the
register be rectified.

13.2.8 The Land Development Fund

The 1995 Lands Act established a Land Development Fund.18

In terms of section 16 (2) of the Act, the Fund shall consist of:-

(a) all moneys appropriated by Parliament for the purposes of

the Fund;
(b) seventy-five per centum of the consideration paid under
section four; and
(c) fifty per centum of ground rent collected from all land.

The Fund is vested in the Minister responsible for finance and is managed
and administered by the Minister responsible for land. 19 The fund is
required to be applied to the opening up of new areas for development of
land20. A council that wishes to develop any area in its locality may apply
to the fund for money to develop the area. 21 The Minister has made
regulations relating to the Fund.22

13.2.9 Dispute Settlement: The Lands Tribunal

The 1995 Lands Act, establishes a lands tribunal. 23 This is an innovation

when compared to the 1975 Act which did not provide for a mechanism of
settlement of disputes arising from the exercise by the President of his
powers under the (1975) Act. The Tribunal was created as a forum for
speedy adjudication of land disputes as well as a way of reducing the cost
of litigation in land matters.24

18
Section 16(1).
19
Section 17(1.
20
Section 18(1).
21
Section 18(2).
22
See the Lands [Land Development Fund] Regulations - Statutory Instrument No. 88 of 1996.
23
Section 20(1).
24
Hansard, supra note 8.

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 In terms of section 20(2) of the Act the Tribunal shall consist of the
following members who shall be appointed by the Minister:

(a) a Chairman who shall be qualified to be a judge of the High Court;

(b) a Deputy Chairman who shall be qualified to be appointed as a

judge of the High Court;
(c) an advocate from the Attorney-General's Chambers;
(d) a registered town planner;
(e) a registered land surveyor;
(f) a registered valuation surveyor; and
(g) not more than three persons from the public and private sectors.

The Chairman and his Deputy are appointed by the Minister after
consultation with the Judicial Service commission.25

The Jurisdiction of the Lands Tribunal is spelt out under section 22 of the
Act. The tribunal has jurisdiction to:-

(a) inquire into and make awards and decisions in any dispute
relating to land under the Act;
(b) to inquire into, and make awards and decisions relating to any
dispute of compensation to be paid under the Act;
(c) generally to inquire and adjudicate upon any matter affecting the
land rights and obligations, under the Act, of any person or the
Government; and
(d) to perform such acts and carry out such duties as may be
prescribed under the Act or any other written law.

In terms of the proceedings of the tribunal the Chairman or the Deputy

Chairman presides over the sittings of the tribunal. 26 The quorum consists
of five members, including the Chairman or the Deputy Chairman. 27 A
member of the tribunal or an assessor shall not sit at a hearing if he has
any interest direct or indirect, personal or pecuniary in any matter before
the tribunal.28 The tribunal is not bound by the rules of evidence applied
in civil proceedings.29 A person appearing as a party before the tribunal
may appear in person or through a legal practitioner at his expense. 30 Any

25
Section 20(3).
26
Section 23(1).
27
Section 23(2).
28
Section 23(4) of Cap 184 of the Laws of Zambia.
29
Section 23(5) of Cap 184 of the Laws of Zambia.
30
Section 25 of Cap 184 of the Laws of Zambia.

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 person aggrieved by any award declaration or decision of the tribunal
may within thirty days appeal to the Supreme Court.31
The Chief Justice has by virtue of the powers vested unto him under
section 24 of the Act made rules for regulating the procedure of the
tribunal.32

13.3 Case Law

(a) Failure to consult any person or body whose interest might be affected by the grant before alienating land situate in
a customary area is fatal.

SIWALE v SIWALE (1999) ZR 84 (SC)

[The Facts of the case appear from the judgment of LEWANIKA, JS, as he then was.]

This is an appeal against a decision of a High Court Judge refusing the appellants’ application for an Order that they
be included on the Title Deeds of Farm No. 5032 Isoka, now Nakonde. The application was made under Section 11 of
the Lands and Deeds Registry Act, now Cap. 185.

The brief facts before the learned trial Judge were that the appellants and the respondent are all children of the late
Donald Siwale (hereinafter referred to as the deceased).  Sometime in 1928 the deceased was allocated about 400
hectares of land by the colonial authorities in consultation with the traditional chief.  The deceased settled on this land
and developed it and it came to be known as Isunda.  The deceased never acquired formal title to the property as it fell
in customary land previously known as native trust land.  But the property was known and accepted as the homestead
of the deceased’s family.  The deceased died on 30th November 1983.  Prior to the deceased’s death the respondent
had received a letter in October 1977, requesting him to come and settle at Isunda, as he did not seem to be doing
anything in Lusaka, the respondent was the deceased’s youngest son.  The respondent moved to Isunda in November
1977, where he settled and stayed with the deceased up to his demise.  After the demise of his father the respondent
decided to apply for title deeds in his own name for the property left behind by the deceased.   He freely conceded in
this evidence that he did not consult any of the appellants who are his elder brothers as in his view they had neglected
the deceased and had not shown any interest in the land.  From 1984 onwards he made an application to the Isoka
District Council and obtained authority from Chieftainess Nawaitwika for the issue of title deeds to himself.  Although he
had applied for title for 400 hectares only 200 hectares was approved and he was issued with a certificate of title for
the same.

The case for the appellants as set out in the affidavit and viva voce evidence of the 1st appellant was that the land
known as Isunda was a family property for all the children of he deceased. At no time were they consulted by the
respondent before he made an application for the title deeds in his own name and the 1st appellant only became
aware that the respondent had obtained title deeds when on retirement from employment in August, 1987, he went to
consult the department of Water Affairs in Isoka about sinking a bore hole at the Village.  He convened a meeting of
the family to discuss the situation but the respondent was not co-operative hence the litigation.   The learned trial Judge
after considering the evidence before him found that it would not be in the best interests of the family to include the
appellants’ names on the title deeds and dismissed the application.

Counsel for the appellants has filed five grounds of appeal namely:

1. That the learned trial Judge erred when he held that the late Mr. Siwale had not acquired title to the land in question.

In arguing this ground counsel said that the learned trial Judge had found that the deceased had not acquired title to
the land in dispute.  He referred to page 11 of the record where the learned trial Judge refers to the deceased’s interest
31
Section 29 of Cap 184 of the Laws of Zambia.
32
See the Lands Act (The Lands Tribunal) Rules - Statutory Instrument No. 90 of 1996.

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in the land as not being “individual rights or title” and as one which was “communal and one in common with the
general members of the local community.”   He said that it was evident from the evidence on record that the deceased
settled on the land in question as far back as 1928 when it was given to him by the colonial authorities.   He submitted
that this being at the time land falling within the traditional ruler’s domain and having been established as a family place
of residence for a long time, it was only fair for the learned trial Judge to have treated the deceased as the “owner” of
the land on which the village was built and in that case he had title to the land under customary law.   Counsel further
submitted that if the deceased had acquired communal title , “one in common with the general members of the local
community,” it was contradictory for the trial Judge to allow one person out of the community to succeed to the whole
or a substantial part of the land to the exclusion of other members of that community.

He further submitted that if this case were to be dealt with under the current Interstate Succession Act of 1989, the land
in question would have easily fallen under the definition of either “family property” or “homestead property” under
Sections 2 and 3 of the said Act. He submitted that this was a proper case where a cross section of a large family has
an interest in the same land that the whole family ought to be protected by a ruling that no single member thereof ought
to deprive others of their right to enjoy the land on which they have settled.

2. That the learned trial Judge further misdirected himself in fact when he found that the respondent had used “normal
channels” to obtain the title deeds.

Counsel submitted that it was established in evidence that at the point when the chieftainess’s permission was being
sought by the respondent in support of his application for title deeds, the respondent had made misrepresentations to
the chieftainess to the effect that he had the support of his family to acquire title to the family land. He referred to the
evidence of P.W. 1 on pages 134 and 135. He further pointed out that the respondent had admitted in evidence that he
did not consult his brothers when he was making the application and that he did not even go to the chieftainess with
any of them, and that the deceased did not give him the farm to be held in his name. He said that all these matters
indicate a fraudulent intention on the part of the respondent to deprive the other members of the family of their right to
enjoy access to and living on the said land.

3. That the learned trial Judge further erred when he found as a fact that the appellants had no interest in the land
belonging to their late father.

In arguing this ground, counsel said that the learned trial Judge had found that there was substance in the
respondent’s assertion that the appellants did not show interest either in settling at Isunda or developing the village,
and that had they been interested they would have acquired the title deeds to the land earlier than the respondent.  
The trial Judge further went on to hold that his finding was reinforced by the fact that it had taken a considerable time
for the title deeds to be issued, such that the appellants ought to have taken steps to prevent the title deeds being
issued to the respondent.  Counsel submitted that from the evidence, it is clear that the appellants had an interest in
the land.  He said that the 1st appellant only discovered the fact that the respondent had obtained title deeds when he
went to the village to try and sink a borehole.  Further, counsel submitted that the appellants could not have known of
the respondent’s application because it was not advertised in the media and the respondent did not tell them about his
application.  He further submitted that there was no evidence before the trial court to suggest that the family members
of the deceased had no interest in continuing to hold the land together as a family.

4. That the learned trial Judge also erred when he held that the inclusion of the appellants on the title deeds to the land
would bring about further problems or that it was not in the best interest of the family.
5. That on the totality of the evidence before the learned trial Judge it was wrong for him to refuse the application
before him.

These two grounds were argued together by counsel for the appellants.  In arguing them counsel said that the land in
question was in the nature of “family village” set up and that the respondent in his own evidence had said, “Isunda was
regarded as the home of my father’s children.”   He said that excluding the appellants from the title to that land will
create more problems than it will solve.  Especially having regard to the respondent’s attitude to his brother highlighted
by the respondent’s evidence on page 156 of the record where he stated that, “with the title deeds you are in control of
the land and can use its resources.  I have control of the land and can control who stays there.”   Counsel submitted

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that the respondent is specifically indicating his intentions to displace the other family members in advancing his
personal interest and he was urging the court to stop him doing so.

In reply counsel for the respondent has submitted that it is not in dispute that the deceased settled on the land in
question many years ago with the authority of the local chief and the colonial authorities.   He said that the land in
question cannot be said to be a village.  He said that the evidence on record is that the deceased requested his
children who include the appellants to settle on the land called Isunda but the only one who heeded the call was the
respondent.  Following the demise of the deceased the respondent took steps to obtain title deeds to the land. He went
to see the chieftainess on two occasions and the District Council also approved his application. He said that the
appellants had advanced the argument that the respondent misrepresented the facts to the chieftainess but that the
evidence on record is to the contrary.  He challenged the authenticity of the document on page 19 of the record and
further said that the document on page 49 only refers to the respondent and not the whole family.  He further submitted
that although the appellant had applied for 400 hectares he was only allocated 200 hectares and that the appellants
were at liberty to apply for title for the remaining 200 hectares and urged us to dismiss the appeal.

We have considered the arguments advanced by counsel for the appellants and for the respondent as well as the
evidence on record.  It is common cause that the land in question was given to the deceased by the colonial authorities
with the approval of the local chief sometime in 1928.  The deceased settled on this land and developed it for the
benefit of himself and his family.  This land was situate in a customary law area or what was then known as native trust
land and although the deceased had no formal title to the land in question, it was generally understood that the land in
question “belonged” to the deceased.  The appellants and the respondent are all the children of the deceased, the
respondent being the youngest.  The appellants were all employed and did not stay with the deceased whilst the
respondent who was not in gainful employment had settled on the land and stayed with the deceased till his demise.  It
is common cause that after the demise of the deceased the respondent decided on his own, without consulting his
elder brothers, to apply for title deeds in his name for the land in question.  He obtained the consent of cheiftainess
Nawaitwika although there is some dispute as to whether or not he misled the chieftainess into believing that he was
doing so on behalf of the family.  However, that issue is not material for reasons that will become clear later.  Suffice it
to say that the respondent freely admitted that he did not consult his brothers and his motive in obtaining the title deeds
in his own words are:
 
 “With the title deeds you are in control of the land and can use its resources.  I have control of the land and control
who stays there.  My brothers are staying else where.”

We have already made reference to the fact that this land when it was given to the deceased was on what was then
called native trust land.  Tenure in these lands was governed by the Northern Rhodesia (Native Trust Land) Orders in
Council, 1947 to 1963 as amended by the Zambia (Trust Land) Order, 1964 repealed and replaced by the Lands Act of
1995.  These orders in Council provided for customary tenure of such land and the learned trial Judge was in error
when he held that the deceased did not have title to the land in question at the time of his demise.  Following from that
is the fact that the appellants had as much right to that land as the respondent being all children of the deceased. 
Further there were restrictions in the alienation of land held under customary tenure in the Order 5 in Council, which
are now to be found in section 3 (4) (c) of the Lands Act, which provides as follows:
 
 3(4) notwithstanding subsection (3), the President shall not alienate any land situated in a district or an area where
land is held under customary tenure:
(c)   Without consulting any other person or body whose interest might be affected by the grant;

Quite clearly the appellants were persons who were affected by the grant of the title deeds to the appellant and they
were not consulted before this was done.

The appellants had applied under section 11 of the Lands and deeds Registry Act that their names be included on the
Title Deeds of Farm No. 5032, Isoka now, Nakonde.  The 5th and 6th Applicants withdrew from the proceedings prior
to the commencement of the trial.  For the reasons we have given, we would allow this appeal and order and direct that
the Register be rectified in terms of Section 11 (2) of the Lands and Deeds Registry Act by the inclusion of the names
of the appellants on the certificate of title relating to Farm No. 5032, Isoka, now Nakonde. As the appellants and the

255
respondent are brothers and will now own the property jointly as tenants in common and in order to promote harmony
and reconciliation, we order that each party is to bear its own costs.

 (b) Section 3(4) (C) of the Lands Act - need to consult any person or body whose interest might be affected by the
grant or conversion - Section 3(4) (d) of the Lands Act - need for applicant for leasehold title in a customary area to
obtain prior approval of the local authority.

Chenda v Phiri and Another –Lat/80/98 [Lands Tribunal]

[The facts of the case appear from the Judgment of the Lands Tribunal]

This appeal came to us by way of an application for an inquiry into a dispute relating to land situated on plot No.
12578/m situated in Chibombo District in the Central Province of Zambia. The Appellants are William Chenda and
Emmanuel Chenda.

The Respondents are Agrippa Phiri, Albert Phiri and Kamal Singh. The Appellant wish the Tribunal to determine that:

i. The Appellants have the primary and sole interest in plot No. 12578/m situated in Chibombo District in the
Central Province of Zambia;
ii. The purported certificate of Title No. L.4878 vested in Aggripa Phiri the 1st Respondent is defective in law as
it was obtained fraudulently and the same is therefore null and void in law;
iii. A vesting order in favour of the Appellants.

William Mudzokera Chenda swore an Affidavit in support of the appeal in which he deposed that William Chenda
senior, the father of the Appellants was a resident of Mupwaya Village in Chieftainess Mungule's area until his death in
1986 and he was appointed administrator of his entire estate. He deposed that the land now described as plot No.
12578/m Chibombo District was vested in his late father under the authority of Headman Mupwaya until his death and
he cultivated the land in question for his livelihood. He further deposed that the said land was subsequently passed on
to the 2nd Appellant, Emmanuel Chenda who continued to cultivate the same without any interference from any person
or persons and he was surprised when he discovered that Kamal Singh the 3rd Respondent had started to cultivate on
this land under the direction and with consent of the 1st Respondent the young brother of Albert Phiri the 2nd
Respondent who is the current Headman Mupwaya. He deposed that when he made representations to Chieftainess
Mungule, and the Chieftainess directed that the land be restored to the Appellants' family estate.

He further deposed that the 2nd respondent without the appellant’s knowledge recommended the issuance of title
deeds to the 1st respondent. He deposed that although the Chieftainess had initially granted approval for the 1st
Appellant to acquire title deeds for this land that approval was revoked at a meeting held on 17th August, 1998. He
also deposed that the 1st Respondent's application for title deeds did not have the support of the Chibombo District
Council as the planning authority and therefore the same is void. He deposed that the 1st Respondent's acts in
obtaining title deeds is fraudulent and since the said application was not supported by Chibombo District Council and
the Chieftainess' approval was reversed the Certificate of Title declared relating to the said piece of land should be as
void. The deponent attached to his Affidavits a sketch plan, Chibombo District Council sets of minutes of meetings, to
be presented to the Council on 25th September, 1997.

The 1st Respondent also filed an Affidavit in Opposition in which he deposed that he inherited the land, which has now
become known as plot No. 12578/m Kabwe from his late grandfather Headman Mupwaya who owned the property. He
deposed that on 20th november 1996 Headman Mupwaya and his Committee recommended that he should apply for
title deeds and Chieftainesss Mungule offered him the land on 12th December, 1997 and this was after a visit to the
land by the Chieftainess and her Committee. He deposed that the land had been lying fallow for close to 18 years. He
deposed that the land was leased to the late W. Chenda by the previous Headman Mupwaya. He stated that the late
W. Chenda shifted to Chibombo in 1980 and according to their custom the land reverted to the Headman who held it in
trust for the local community. He further recommended, inter alia, that he be allocated the deposed that Chibombo
District Council land. He attached to his Affidavit minutes of the meeting of the Council held on 26th June 1997 and
explained that the appendices where his name appears are in the custody of the Senior Lands Officer who had advised

256
him that the list was confidential and could not be released to him as an exhibit. He, among other documents, attached
to his Affidavit, a formal letter of offer from the Commissioner of Lands dated 31st March 1998 and Certificate of Title
No. L4879 in respect of plot No. 12578/m Kabwe issued on 17th July 1998 in his favour.

The Appellants were represented by Mr. Winter Kabimba of W. M. Kabimba and Company and the Respondents were
represented by Mr. Robert Wood of A. M. Wood and Company. Mr. Wood however withdrew during the course of the
proceedings and the Respondents were given time to engage another Advocate if they so wished but we do not have
on record evidence that any other lawyer has been engaged by the Respondents.

William Chenda adduced evidence on his behalf and on behalf of the second Appellant. We do not intend to reproduce
that evidence as it was in line with what was contained in the Affidavit in Support.

Mr. David Kabamba, the Council Secretary for Chibombo District Council gave evidence on behalf of the Appellant. He
testified that he assumed his position in 1995 after he was transferred from the Copperbelt. He stated that according to
records at the Council, the land in issue is customary land under Chieftainess Mungule and nobody owns it individually.
He said that in 1997 he received an application for this land from Kamal Singh, 3rd respondent and since it was in a
customary area, the Works and Development Committee went to inspect it and found that there were people who had
stayed on the land to be given to the 3rd respondent who was advised to go and look for another piece of land. He
admitted that, at this point the Application had the support of Chieftainess Mungule. He denied that the 1st Respondent
ever attended any interviews in relation to this land and that there was no record of any application from the 1st
Respondent.

He stated that the 1st Respondent was given title deeds without authority of his Council. He also revealed that
Chibombo District Council became a full Council in January, 1998. He vehemently denied that the 1st Respondent ever
attended any interviews for the allocation of the land in issue as such interviews would have been confirmed through
minutes of the Council for which he was in charge as they are under his custody. He confirmed that the Appellant's
family was found on the land when the Works and Development Committee went to inspect it. He denied knowledge of
the 1st Respondents.

The 1st Respondent gave evidence which was almost the same as his evidence in his Affidavit which we have already
referred to earlier except that he was surprised that Mr. Kabamba, the Council Secretary, denied having received his
application and that he did not know him. He insisted that he attended interviews for allocation of this land and he later
received approval which was communicated to him on a piece of paper which he took to the Lands Department. He
said that he received a letter of offer and he paid what he was required to pay. He denied that he obtained title deeds
fraudulently.

He denied that this piece of land was given to the Chendas by the former Headman Mupwaya.

Nathan Donald Ndulo gave evidence on behalf of the Respondents. Mr Ndulo gave his occupation as a farmer of
Mwakawela's village in Chieftainess Mungule's area and during the relevant period he was a Councilor for Katuba
Ward and this was between 1992 and 1998. He testified that the 1st Respondent had applied for the piece of land in
issue and that he himself recommended that the 1st Respondent be given that land. He said that the 1st Respondent
attended interviews but that his name was omitted when minutes were produced .

The Tribunal inspected the land in issue in the presence of all the parties, their lawyers and the villagers. We were able
to note the boundary of the land in issue.

Parties were directed to file in written submissions which the Appellants have done through their Advocates. We have
not received any submissions from the Respondents. We would like to mention that the 3rd Respondent never
appeared and therefore did not give evidence.

The land in question is customary land which falls within the jurisdiction of Chieftainess Mungule who had authority to
recommend allocation to the Respondent provided other procedures are followed. By law only the President can and
does alienate or give land to those who apply for it. This power is exercised by the President through the

257
Commissioner of Lands. The Commissioner of Lands in turn uses the local authorities throughout Zambia as his
agents, who interview interested persons and successful candidates are given letters of recommendations to the
Commissioner of Lands who has the final say whether he should take the recommendations or not.

The 1st Respondent claims that he made his application to Chibombo District Council for this piece of land, that he
attended interviews and that his application was duly approved by the Council. He has not produced the letter of
approval which he says was on a piece of paper. This is unusual as from our experience; such letters will be on a
letterhead of the particular local authority. The 1st Respondent has however produced a formal offer from the
Commissioner of Lands. There is no explanation as to how this letter of offer came about considering that there is no
evidence that Chibombo District Council wrote to the Commissioner of Lands recommending the allocation of this land
to the 1st Respondent. The Council Secretary has himself denied having any record of the 1st Respondent's
application and subsequent interviews. The minutes produced by the 1st Respondent do not show that the 1st
Respondent was interviewed resulting in his application being approved. It is a blatant lie for the 1st Respondent to say
that the appendix to the minutes of Chibombo District Council was in the custody of the Senior Lands Officer and that
the appendix is confidential. The 1st Respondent has not even the piece of paper on which the approval was
communicated to him. We fail to understand how the 1st respondent came to be issued with title deeds...

From the evidence before us it is quite clear that the Appellants and their family have been on this land for many years
and therefore have an interest in this land. Before the 1st Respondent proceeded to apply for title deeds for this land
he should have consulted the Appellants and their family. Section 3 (4) of the Lands Act, Act No. 29 of 1995 provides
as follows:-

(4) Notwithstanding Section (3) the President shall not alienate any land situate in a district or an area where
land is held under customary tenure.

(c) Without authority of any other person or body whose interest might be affected by the grant and,

(d) If an applicant for leasehold -title has not obtained the prior approval of the Chief and the local authority
within whose area the land is situated.

The Appellants have said that they were not consulted and the Respondents have not rebutted this allegation. Section
3 (4) (c) has therefore not been complied with.

This position was reaffirmed by the Supreme Court in the case between Siwale v Siwale33, the case which has been
referred to by the Advocates for the Appellant in their submission. Failure to consult persons who may be affected by
the grant offered against Section 3 (4) (c) and is therefore fatal.

Even if Chieftainess Mungule had given her consent as the 1st Respondent has insinuated, the fact that Chibombo
District Council did not approve the Respondents' application means that Section 3 (4) (d) was breached.

We find that the Appellants have proved their case to our satisfaction. We will allow the Appeal for reasons we have
already given in this Judgment.

We declare that Certificate of Title No. L. 4879 issued to the 1st Respondent on 17th July 1998 in the name of the 1st
Respondent is null and void.

We order the 1st Respondent to surrender the said Certificate of Title to the Chief Registrar of Lands and Deeds for
cancellation. We order that the said piece of land vests in the Appellants.

33
(1999) ZR 84.

258
In Village Headman Mupwaya and Another v Mbaimbi.34 it was held by the
Supreme Court, inter alia, that failure to consult any person whose interest may
be affected by the grant as required under section 3 (1) 4 (c ) of the Lands Act was
fatal . The case is excerpted below.

Muzyamba J.S: This is an appeal against a Lands Tribunal decision that the piece of land in issue belongs to the
respondent and his family. The brief facts of this case are that the first appellant is a headman of Mupwaya Village in
Chief Mungule’s area and the respondent is one of his subjects. The second appellant is an Indian, resident in Zambia.
Sometime in 1996 one Shakespear introduced the second appellant, who was looking for a piece of land to settle on,
to the first appellant. After some discussions the first appellant gave the second appellant a piece of land to settle on.
This land belonged to the respondent having, inherited it from his late father in 1984. His deceased father settled on
that land in 1938. Unhappy with the alienation of his land, the respondent took the matter to the Lands Tribunal who
upheld his claim.
The appellants filed some grounds of appeal but as we see it, the success or otherwise of the appeal depends upon
whether or not the provisions of the Lands Act, Cap 184, in particular Section 3(1) (4) ( C) (1), were complied with. The
section provides:
“3. (1) Notwithstanding anything to the contrary contained in any other law, instrument or document, but
subject to 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.
(4) Notwithstanding subsection (3), the President shall not alienate any Land situated in a district or an
area where land is held under customary tenure
(c) Without consulting any other person or body whose interest might be affected by the grant.

It is common cause that the piece of land in issue is held under customary tenure and that the respondent was never
consulted by the first appellant before alienating his land to the second appellant. In Siwale (2), this court had occasion
to interpret the above section and we held, at page J8 that since the appellants were affected by the grant of Title
Deeds to the respondent and were not consulted before the grant the register of Deeds would be rectified by the
inclusion of the appellants on the certificate of Title. This is a case involving 400 hectares of land held under customary
tenure on which the deceased, Donald Siwale settled and all the parties are his children. Upon his death the
respondent applied to Isoka District Council for allocation of the land to himself and obtained a letter from Chieftainess
Nawaitwika for issuance of Titles to himself. Title Deeds were issued to him for only 200 hectares. Upon learning that
this is what the respondent had done the appellants took the matter to court for rectification of the Register at Lands
and Deeds Registry.
In the case presently before us, the law was not complied with in that the respondent, as an interested person affected
by the grant was never consulted. The appeal must necessarily therefore fail with costs to the respondent to be taxed
in default of agreement.

34
SCZ Appeal No. 41 of 1999 (unreported).

259
As regards the Well that was sank by the second appellant, it is for the benefit of all villagers and if any compensation
has to be made to the 2nd appellant then all villagers must contribute some money towards that compensation. There
shall be liberty to apply to the Lands Tribunal on this issue to determine the cost of the Well and whether it has water
and is functioning.

(C) Land held under customary tenure can only be alienated if consent is obtained by the traditional chief from those
whose interest may be affected by such allocation. Failure to consult renders the allocation or grant null and void.

Still Water Farms Limited v Mpongwe District Council and Others- Supreme Court Appeal No. 90/2001 [Unreported]

[ The facts of the case appear from the Judgment of the Supreme Court delivered by Chibesakunda,J.S ]

…In this Appeal the Appellant a Company incorporated in Zambia, which was the Appellant before the Lands Tribunal
is challenging the Lands Tribunal's decision in favour of the four Respondents.
Before the Lands Tribunal, the Appellant appealed to the Lands Tribunal seeking confirmation of the allocation of the
Farm Land No. 013 Mpongwe to it. The evidence for the Appellant given by Mr Van Rensberg who was one of the
shareholders in the appellant Company was that he came to Zambia in 1993 on Entry Permit No. 48050. That permit
entitled him to enter and re-enter Zambia and remain in Zambia and for a profit to be a farmer and to be self-employed.
It was issued to him on 28th September 1996, by current Chief Lesa. This Mr Van Rensberg had an Investor's License
No. 408/02/93 issued to him on 13th December 1994. His evidence also is that he approached the current Chief Lesa
seeking allocation of some land to the company which he formed and registered as the appellant Company, He
testified that the current Chief Lesa after visiting and looking at the land in question consulted the traditional
councillors. They all agreed to the Chief allocating the appellant Company 107 hectares of land in Chief Lesa's area in'
a letter dated 28th September 1996. Subsequently Chief Lesa and his councillors recommended to the 1 st respondent
this allocation of land to the appellant Company. The 1 st respondent held a meeting on 5th March 1999 at which it was
resolved that inspite of the objections by the 3rd and 4th respondents the land in question was to be allocated to the
appellant Company, The 1st respondent held another meeting on 23rd April 1999 at which meeting it approved this
allocation of this land to the appellant Company. The council secretary of the 1st respondent then communicated this
approval of the allocation of land to the appellant Company to the 2nd respondent in a letter dated 12 th May 1999
recommending the issuance of title deeds to the appellant Company.
The appellant's case also is that it was very strange that the same Provincial Lands Officer despite all the foregoing
events wrote a letter to the 1st respondent directing it to revisit this decision of allocation of land to the Appellant
Company allegedly because the 3rd and 4th respondents claimed the said farmland as theirs as it was given to them'
by the predecessor of the current Chief Lesa. The current Chief Lesa in reaction wrote a letter dated 31 st January 2002
to the Lands Tribunal disputing the claims of the 3rd and 4th Respondents that his predecessor gave them land as way
back as 1979. In the same letter the current Chief confirmed that he had allocated 107 hectares to the Appellant
Company after consulting the traditional councillors.
The four respondents in the Lands Tribunal opposed the appeal. In their affidavit evidence their case is that the land in
question being traditional land under customary tenure could not have been allocated to the Appellant Company
because it could only have been done so if the allocation followed a certain well established procedure. Their case is
that the letter before the Tribunal suggesting the allocation of that land to the appellant was done by the current Chief
Lesa. The land in question had already been allocated to the 3rd and 4th respondents by the late Chief as way back
1979 and that the current Chief Lesa could only have done that allocation in consultation with the traditional councillors
and with the consent of the 3rd and 4th respondent which the Chief did not follow.
Their case also is that at the time of the purported allocation of the land in question by the current Chief Lesa, the 3 rd
and 4th respondents had an interest in the land in question. The current Chief did not, contrary to his assertion, consult
the traditional councillors the appellant Company mentioned in its appeal as having been consulted. They further
stated that the land in question was adjacent to their farms so they had an interest. They pointed out to the fact that the
Mr Van Rensberg and his brother had been renting land from the late Phillimon Ngoma as well as from them an area of
3000 hectares. According to them that was sufficient land for the Appellant Company to continue carrying out farming
activities.
They further deposed that the same Mr Van Resnberg on behalf of the appellant Company had tried on previous
occasions to acquire the same land by consulting them but that they had refused to facilitate him acquire land as they

260
told him that that land belonged to them. In 1996 he again approached the 4th respondent on his own asking him to
facilitate him taking over that same land but the 4th respondent told him that he and the 3rd respondent owned that
farm jointly for a purpose. So the appellant inspite of this information, behind their backs, went to Chief Lesa and
acquired the same land surreptitiously. Thus, as far as they were concerned the appellant Company did not follow the
right procedures and as such it was not properly allocated the land in question. They deposed that this is why when
they had an opportunity with the Provincial Lands Officer when there was a meeting at the provincial level they
protested against the appellant Company being allocated the land in question. They were, therefore, surprised that
even after this protest by them Mr Van Resnberg started building a residential house on the land in question after the
purported allocation of this land by current Chief Lesa to the appellant Company. He continued to build the house even
after receiving a letter from the Provincial Lands Officer dated 11 th January 2000. He still continued to build even when
the District Secretary, Mpongwe District Council, wrote him a letter cautioning him about this allocation of the land to
the Appellant Company.
The 3rd and 4th respondents maintained that they ought to have been consulted before the allocation of the land in
question to the appellant. Three other traditional councillors by the names of Amos Mali, Patson Bonsebakaya Sengela
and Frank Kalyolyo deposed in their respective affidavits supporting the 3rd and 4th respondents that the current Chief
Lesa did not consult them before allocating the land in question, to the appellant. They also deposed and viva voce
testified that as far as they were concerned the 3rd and 4th respondents had been allocated the land in question as
way back 1979 by the late Chief Lesa.
The Lands Tribunal, on the evidence before it, held that according to farm permit, 107 hectares was allocated to the
appellant company But it however held that such allocation was null and void as the current Chief Lesa did not follow
the right procedures stipulated in Section 3 (4)(c) of the Lands Act in that he did not consult the traditional councillors
and all other interested parties before allocating that land to the appellant Company. They went on to hold that the
issuance of the title deeds, when there were strong objections from the 3rd and 4th respondents, was wrong. They
referred to the cases of Siwale v Siwale35 and Mupwaya and another v Mbaimbi, 36 of this court and dismissed the
Appeal.
Now before us the appellant Company referred to Section 7 (1 )(2) of the Lands Act , Chiefs Act and Statutory
Instrument No.7 of 1964 arguing that the learned Chairman and his Members of the Lands Tribunal erred in their
decision by relying on the need for the Chief to have consulted the 3rd and 4th Respondents before allocating the land
to the appellant Company. Dr. Sakala, state counsel for the appellant, argued that the proper procedure in the
distribution of tradition land is not that there has to be consultations with the 3rd and 4th respondents. Referring to the
book of An African Survey - A Study of Problems Arising in Africa south of the Sahara , by Lord Hailey, Oxford
University Press (1957) p. 685, arguing the first and third grounds of appeal he argued that since the land in question
was unused or unutilized tradition land, that land had to revert to the Chief as a custodian of the community under the
chiefs Act. He argued that the Chief has almost autochthonic powers over such land as he does over his people. This
is more so since the land was unused or unoccupied. He referred to Treatises and argued that the Chief has complete
domain over such land and that land is held in trust by the Chief on behalf of the community. The Chief in that capacity
has a right to allocate that said land to someone else provided he consults the traditional councillors. His argument
also is that the Appellant needed only to consult the Chief and to get his consent it was up to the Chief to consult his
councillors and in this case the Chief did consult his traditional councillors as was testified in the court below.
He argued that this was more so since the two respondents were given land in 1979, which they had not developed.
That being so the land automatically reverted to the Chief and as such the Chief could reallocate it to another investor
he regarded as being fit. He referred to the procedures, which the Appellant Company went through. He pointed out to
the fact that the appellant approached the Chief. The Chief recommended the' issuance of the certificate of title deeds
of that land to the appellant. The 1st respondent held meetings and even after taking into account the objections by the
3rd and 4th respondents approved the allocation to the Appellant on 5 th March and 23rd April 1999. Therefore, the
equitable' principle of estoppel should operate against any change of mind by the 1 st Respondent - see Dixon v
Kennaway and Taylor Fashions v Liverpool Victoria Trustees Limited.
On ground two, Dr. Sakala argued that the Lands Tribunal wrongly applied the ratio decendi in the Siwale v Siwale
case. He referred to the same case and sought to distinguish it with the case before us. According to him the Siwale
case was not on all fours with the instant appeal. He argued that even the case of Albert Phiri Mupwaya and another v
Matthew Mbaimbi was not on all fours with the case before us. He therefore urged this court not to use the ratio
decendi in these two cases. On ground four he argued that the Lands Tribunal erred when it ignored and made no
ruling whatsoever on the developments the appellant carried out on the land in question, estimated at K40 000, 000. 00

35
Ibid.
36
SCZ Appeal no. 41 of 1999.

261
for uncompleted residential house, US 4 000. 00 for water bore hole and K1 000 000. 00 paid as survey fees. It is his
argument that at least, as the appellant Company had prayed for this remedy, the court below should have awarded
the expenses it incurred in developing the land in question.
In the last ground of appeal, Dr Sakala submitted that although he was not going to belabour his client's views that the
challenge by the 3rd and 4th respondents of the allocation of land to him was motivated on racial grounds and abuse of
political office he nonetheless urged this court to scrutinize the role the 3rd and 4th respondents played in this wrangle.
He submitted that for this court to really appreciate this Judgment it should look at the period when this land was
allocated to the 3rd and 4th respondents in 1979 and 1999 when it remained unutilized for 20 years. He submitted that
the 3rd and 4th respondents suddenly and irrationally swung into action challenging the allocation of land to the
appellant Company. He pointed out to the fact that the 3rd and 4th respondents never developed the land in the 20
years and never showed any signs of interest only to wake up and without justification and irrational protested on the
allocation of that land to the appellant Company. He urged this court to analyze the motive of the 3rd and 4th
respondents in challenging the allocation. He pointed to the fact that the 3rd respondent was a Cabinet Minister when
he objected to the allocation of that land to the appellant Company. He was still a Cabinet Minister in the year 2000
and that he used his political profile to challenge this allocation of land to the Appellant Company. So he urged this
court to agree with his client that the 3rd respondent must have done this because of his political profile and that the
whole challenge was based on racial motives.

We have considered the evidence, submissions and arguments before us. It is common ground that the land in
question was traditional land held under customary tenure and as such could only be alienated in accordance with
Section 3(4) of the Lands Act (4). This section says:
Notwithstanding subsection (3), the President shall not alienate any land situated in a district or an area
where land is held under customary tenure
(a) Without taking into consideration the local customary law on land tenure which is not in conflict with this
Act;
(b) without consulting the Chief and the local authority in the land area in which the land to be alienated is
situated, and in the case of a game management area, and the Director of National Parks and Wildlife
Service, who shall identify the piece of land to be alienated;
(c) Without consulting any other person or body whose interest might be affected by the grant; and
(d) if an applicant for a leasehold title has not obtained the prior approval of the chief and the local authority
within whose area the land is situated.

The evidence that was laid before the Lands Tribunal by the 3rd and 4 th respondents supported by the affidavit and
viva voce evidence of the traditional councillors who were mentioned in the letter as having agreed to the allocation of
land to the Appellant Company was that the current Chief Lesa did not consult the tradition councillors as well as the
3rd and 4th Respondents.
The evidence for the appellant Company is that the traditional councillors as well as the 3rd and 4th respondents were
consulted but that the 3rd and 4th respondents objected to the allocation of land because they had an interest in the
land in question as it had been given to them as way back as 1979 by the predecessor to the current Chief Lesa. The
Lands Tribunal rejected this evidence for the Appellant and accepted the evidence of the3rd and 4th Respondents that
they were not consulted. Quite clearly, having accepted that the 3rd and 4th Respondents were not consulted, the
provisions of Section 3(4) came into play according to that Section the 3rd and 4th Respondents are persons whose
interest were going to be affected by the allocating of land to the Appellant Company. It was argued by the Appellants
that the land in question reverted to the Chief, as it was not developed in the 20 years the 3rd and 4th Respondents
had an interest in that land. Section 3(4) talks about a person or any body whose interest might be affected by the
grant The Lands Tribunal must have grouped the 3rd and 4th Respondents as persons whose interest might have
been affected by the allocation of that land to the Appellant Company and as such they ought to have been consulted.
Although we agree with Dr. Sakala's forceful argument that Chiefs enjoy autochthonic powers over land held under
customary tenure and especially undeveloped land nonetheless Section 3(4) of the Lands Act is couched in such a
way that it is mandatory for the 3rd and 4th Respondents to have been consulted before allocating the land to the
Appellant Company. Failure to do so results in the purported allocation to be null and void.
It was also argued by the Appellant Company that the Tribunal erred in applying the ratio decendi in the case of Siwale
v Siwale. We agree that the facts in the Siwale v Siwale were different from the facts before us. In the Siwale v Siwale
case, the deceased who had been given the land by the colonial authorities with the approval of the local Chief
sometime in 1929, died interstate. The Appellant who were his siblings objected to their last brother obtaining "title'
deeds of that land without their consent. This court agreed with them that under Section 3 (4) it was obligatory on the

262
part of the traditional chief to seek their consent, as according to that Section their interest would have been affected
by one of their brothers obtaining title deeds of that land. This court pointed out to the fact that that land held under
customary tenure can only be alienated if consent is obtained by the traditional chief from those whose interest maybe
affected by such allocation.. In the Siwale case the core contention was exactly the same contention as in the case
before us. In this case before us the core question is whether or not the procedure adopted by the current Chief of
allocating land to the Appellant Company without consulting the 3rd and 4 th Respondents was a proper procedure. Our
view is that the procedure adopted by the current Chief was wrong and as such the allocation of land to the Appellant
is null and void.
The Appellant has argued that the objection by the 3rd and 4 th Respondents was racially motivated and vexatious.
Although one can see that the objection by the 3rd and 4th Respondents was irrational especially taking into account
the fact that the land remained undeveloped for 20 years nonetheless, there is no evidence to support the accusation
by the Appellant Company that such objections were racially motivated and that that was an abuse of office by the 3rd
Respondent. So in view of the conclusions just made that the procedure made by the current Chief was in breach of
Section 3 -(4) of the lands Act, we hold that the argument that the, challenge of the allocation of land to the Appellant
Company was racially motivated and vexatious, is not tenable.
Coming to the invitation by the Appellant Company that we should invoke the doctrine of estoppel in as far as the 1st
Respondent is concerned, we hold the view that as Section 3 (4) of the lands Act is mandatory, the doctrine of estoppel
cannot be invoked since the doctrine cannot defeat such a statutory provision. The only point we want to consider is in
relation to the expenses incurred by the Appellant Company in developing the land in question estimated at K40 000
000 00 of the uncompleted residential house, US $4.00 00 for water borehole and K1 000 000 00 paid as surveying
fees. We have taken note of the fact that the Appellant Company in its appeal to the Lands Tribunal pleaded damages
as alternative to the allocation of land. We therefore hold that since the Appellant Company was allocated the land in
question by the current Chief and Mr Van Resnberg on behalf of the Appellant Company believed that there were
consultations with the traditional councillors and the 1 st Respondent on two occasions accepted the recommendations
of Chief Lesa and recommended to the 2nd Respondent the issuance of title deeds to the Appellant Company, there
was good ground for the Appellant Company to have believed that the allocation was bona fide. The Appellant
Company therefore with that firm belief developed that land, We therefore hold that the Appellant Company is entitled
to recover its expenses incurred in developing that land in question. We therefore hold that the value of those
developments must be paid back to the Appellant Company. We order that the Government Evaluation Department
should, evaluate the improvements and that this value to be paid by the 2nd Respondent to the Appellant Company.
We order that the Appellant be condemned in costs for this appeal and in default of agreement, the costs to be taxed.

(D) Once customary land has been converted to leasehold, a Chief has no control over the land and cannot thereafter
withdraw the consent to convert.

Makwati V Senior Chieftainess Nkomesha - Lat/60/97 – [Lands Tribunal] [Unreported]

[The facts of the case appear from the Judgment of the Lands Tribunal]

The Appellant in this matter is one Alstone Makwati 54 years old, retired Major in the Zambia Army of Plot, No.
323,Kabwata, Lusaka. The appeal is against Senior Chieftainess Nkomeshya's refusal to allow him to settle and
develop Farm No 1671/M Chongwe which he bought from Raphael Joseph Mapulanga in 1991. We will refer to Senior
Chieftainess Nkomeshya in this judgment as the Respondent.
In his evidence the Appellant testified that on 16th April 1991, Mr. Raphael Joseph Mapulanga sold to him Farm No.,
1671/1 of Chongwe at the price of K 2,000,000.00. He said that the Farm had earlier on been offered to Honorable
Gibson Nkausu who could not buy it because he had one already. He stated that on 6th March, 1991 Mr. Mapulanga in

263
the company of Honorable Nkausu offered the Farm to him. Mr Mapulanga showed the Appellant the title deeds which
the Appellant took to his Lawyers Messrs Martin Banda and Company for verification who confirmed with him that the
title was okay. He said that he went with his Lawyers to the Lands Department to conduct a search where it was
discovered that, Mr. Mapulanga had a mortgage with Standard Chartered Bank which had not been paid been paid off.
He said that his Lawyers later wrote to the Bank , enquired to know what the redemption sum was. He said he had
earlier together with his lawyers physically inspected the land Mr. Mapulanga was offering to him and he was happy
with it.
He said that his Lawyers prepared a Contract of Sale which both parties signed and Mr Mapulanga Was paid K
140,000.00 as part payment for the sale of Farm No.1671//M Chongwe. This was on 16 th April, 1991 the date of the
contract. He said the process for change of ownership was done and he was given title deeds in his name on 25 th July
l994. He said all the necessary fees such as property , transfer tax and consent fee were paid to the relevant offices.
He said on 3rd June, 1997 he decided to grow some maize, beans, groundnuts and other crops but was afraid to do so
because he realized people in that area were not happy and so he decided to go through the headman of the area
(Libuko Village) by writing a letter on 23 rd June 1997, which letter he was had been referred to the Respondent on 23rd
July 1997 seeking her authority to settle on the land and to start developing it. In this letter the Appellant gave a brief
history of how he bought the land in issue pointing out, inter alia, the following at the time of buying it from Mr.
Mapulanga:-
(a) The land was surveyed and demarcated with beacons made of iron pegs in concrete;
(b) The land was all cleared and up to now nobody is using it; and
(c) The 65 meter fully cased borehole was sunk and it is currently not in use
(d) Title deeds issued by the Government in the name of the late Mr. Mapulanga were produced to prove the
ownership.
He suggested in this letter that if her people were interested in his farm he was ready to instruct his lawyers to hand it
over to them but those people should be prepared to pay for it at current valuation together with 10% legal costs total
value.
The Appellant said that he was given an appointment to see the Respondent on 29 th July,1997. The Appellant stated
that he was given a one hour lecture by the Respondent and she talked about a lot of things but what he got out of this
lecture was that the Respondent would not allow the Appellant to settle on the piece of land because it was in a village
and the late Mapulanga did not obtain authority from either the Headman, or herself before acquiring that land around
that village. He said he could not argue with a respectable traditional ruler like the Respondent and when he sougt
legal advice he was told the Lands Tribunal would be the right Court to deal with the dispute. He said that it could also
be a question of politics because the Respondent is UNIP and he was a strong MMD supporter. He also attributed the
Respondent's stand to the fact that he would not be allowed to settle on that land because he is not Soli.
Under cross-examination by the Respondent, the Appellant said the title in the name of Mr. Mapulanga were issued by
the UNIP Government and at that time there was no problem because Mr Mapulanga was in UNIP but now because
there is MMD Government there is a problem. He also said he attempted to bring Mr Mapulanga on four occasions
before a traditional court but could not come because he was sick and he promised he would come upon recovery but
he died as he never recovered. When asked questions by the members of the Tribunal the Appellant stated that he
was advised that since there were already title deeds, he did not need authority of the Headman or the Respondent as
such authority should have been obtained by Mr. Mapulanga. He said he had not carried out any developments on the
plot because he was not allowed to do so. He said that he plans to put up an irrigation system for growing vegetables,
chicken run up 300 chickens, dairy animals for milk; 5 hectare for maize growing and animal grazing. He said he was
in the process of getting planning permission from the local authority but could not do so ,because he was told to see
the Respondent before he could do ,anything on that plot. He explained that although the Contract of Sale only
provides for the purchase price as K50,000-00 there were other payments which he had to pay himself such' as
property transfer tax which he paid to Zambia Revenue Authority, Consent fees, Legal fees and that is why the
amount is for K2,000,000,00. he said he did not pay any money to Standard Chartered Bank Limited because they
refused to accept the money because there was no record.
The Respondent, Senior Chieftainess Nkomeshya a female adult of Chakwela Makumbi Royal palace Chongwe a
traditional Ruler by occupation began her evidence by Saying that she did not know the Appellant. She said she first
met the Appellant at her restaurant in Chongwe when the Appellant introduced himself to the Respondent.
The Appellant was given an appointment to see the Respondent with two retainers at her palace.
The Appellant told her how he bought the plot opposite Chongwe secondary school from Mr. Mapulanga who was
Govenor in the second Republic. She was told that the Appellant had actually paid for the piece of land in issue. The
Respondent sympathised with the Appellant for having paid Mr. Mapulanga money for the land which did not belong to
Mr. Mapulanga. She then told the Appellant to go and bring Mr.Mapulanga to come and explain how he acquired the

264
piece of land which the Appellant agreed he would do. She said when the Appellant came back after some days he
brought a letter from Mr Mapulanga, but she insisted to have Mr Mapulanga but she was advised Mr Mapulanga was
no more. She said that she suggested to the Appellant that she would consider giving him another piece of land if he
was really interested in settling in that area. She said she was not happy with the appellant's letter of 17th July 1997 in
which she was given a deadline within which to reply and threatened court action. She said she could not operate
under threats. This letter read in part as follows:
“While we appreciate whatever you will do for me I should respectively (respectfully) mention that, if there will
be no favourable response within 21 days from the date of this letter, my Lawyers will request the Ministry of
Lands to offer relevant guidance. In addition legal proceedings will be instituted, not to punish the people but
to practice democracy and justice”
The Respondent stated that Chongwe Secondary School was within a village called Libuko. She explained that the
school was transferred from Chalimbana in 1983 after the Government requested her to find a suitable land for the
school which she did after consultations with village headmen. She said her people stopped Mr. Mapulanga from
carrying out any further developments after he had sunk a borehole, because he had not sought authority from the
Village Headman. She said she was not aware that Mr. Mapulanga had proceeded to process papers for title deeds
with the Commissioner of Lands. She complained that the appellant did not have respect for her as traditional ruler as
he has kept referring to her as "that woman". She referred to a verse in the Bible Proverbs 22 versus 23 which says
“Don’t take advantage of the poor just because you can. Don’t take advantage of those who stand helpless in court.
The Lord will argue their case for them and threaten the life of anyone who threatens theirs. She said that the Appellant
was only able to introduce himself to the village Headman through a letter when he could have called on the village
Headman personally. She said that the Appellant did not have courtesy for the headman or herself.
The Appellant did not cross-examine the Respondent and when asked questions by members of the Tribunal for
Clarifications, She said that she only knew that the Appellant had title deeds when the matter was brought before
Lands Tribunal. She also said she cannot allow the appellant to settle on this piece of land because there are people
(her people) who would like to use that land. John Lupiya 68 years old of 22 David Kaunda Secondary School, Lusaka
a retired building officer testified on behalf of the Respondent. He said he does not know the appellant but knew. Mr
Mapulanga. He said then they saw Mr. Mapulanga start digging a foundation and he brought some building materials
they stopped him going ahead with any developments. He said Mr Mapulanga went away in 1982 and never returned.
Mr Bernard Lupiya gave similar eveidence as that of John Lupiya. At the close of the evidence from both sides the
Tribunal moved to Chongwe for an on the spot inspection. The inspection was attended by several headmen and their
subjects apart from the respondent and the appellant. We were able to see the borehole which is currently not being
used. The land in issue is cleared. The appellant was not able to show us their beacons. The appellant was
somehow uncooperative maybe he was overwhelmed by the presence of so many village headmen with their subjects
on the side of the respondent. We now have to consider whether this particular piece of land, on farm No. 1671/m
Chongwe is traditional land over which the respondent could have control. Admittedly this land is in the midst of
villages, surrounded ,by villages and ordinarily should fall under the jurisdiction of a traditional ruler. In this case
Senior Chieftainess Nkomeshya and village Headman Libuko. On the 4 th of may, 1975. Mr Raphael Joseph
Mapulanga then District Governor for Feira applied to the commissioner of lands for a piece of land in Lusaka near
Chongwe Headquarters. This piece of land would be for a residential house and small scale farming. The
Commissioner of Lands on 1st july 1975 wrote to the District Secretary, P. O. Box 210, Lusaka informing him that Mr
Mapulanga had applied for a piece of land shown on a sketch plan which was sent to him and wanted to know if he
had any objection to the intended developments by the appellant. By copy of this letter, senior chieftainess
Nkomeshya was invited to give her views on this matter. The letter was copied to senior chieftainess Nkomeshya and
the secretary of Rufusa rural council (which is now chongwe district council) Rufunsa rural council responded by letter
dated 17th February 1976 stating that the, council did not have any objection to Mr. Mapulanga occupying the site
indicated on the plan. Thc Acting District Secretary Lusaka Rural by a letter dated 18 th march 1976 wrote to the
Commissioner of Lands advising advising that he did not have any objection for Mr Mapulanga to have a residential
small on the proposed site all these letters do not have any reference to the particular plot but it looks very obvious
that, all the parties must have had a very clear understanding number of the property they were talking about through
the sketch plan which Mr Mapulanga referred in his application to the Commissioner of Lands." Although the
Respondent was asked for her views by the commissioner of Lands, we have no evidence that any communication
was sent to the Commissioner of Lands. In the absence of any objection a formal offer of this piece of land was sent
to Mr Mapulanga on 19th July, 1996 by the Commissioner of Lands and Mr. Mapulanga was advised to pay a total of
K314-60. Although we have no evidence of this amount having been paid we will not be far from being right and
assuming that this amount must have been paid and that is why a 99 year lease was granted to Mr. Mapulanga. The
lease is dated 30th April,1975.'

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Once title deeds were issued to Mr Mapulanga the land issue ceased to be traditional land and the Respondent
ceased have any control over it. If the respondent had responded to the Commssioner of Lands letter requiring an
objection to Mr Mapulanga being given that land because it was a customary land the story would have been very
different today and this case would not have come before us. Upon Mr. Mapulanga acquiring title to the land he was
free to sell it to anybody he chooses and in our view, there was no obligation on the part of the appellant to have
sought authority from villageHeadman libuko or indeed the Respondent.
We sympathise with the Respondent that this land has been taken away from her people and her sentiments are very
much appreciated by us However in the absence of any irregularity in the way the land was aquired we are unable to
be of any assistance to the Respondent. We feel it is rather late to protest over title to this piece of land.

Generally, the right to acquire interests or rights in land under customary tenure
in Zambia vests in individuals by reason of their being legitimate residents in a
given area within which they exercise such rights. The rights to acquire land
might arise from the fact of being born in a particular area. The right may also
arise from the fact of being accepted as a resident who has moved into the area
from somewhere else. The right to acquire land under customary tenure can be
seen as inhering in membership of a community or alternatively in a territorial
dimension of residence in an area.37 In the Makwati case, the appellant
attributed the respondent Senior Chiefteness’ stance on the grounds of tribal and
political affiliation. If the land involved was traditional land (and considering
that the appellant was not soli) the only way the appellant was going to acquire
land or an interest in land was by being accepted as a resident who had moved
into the area from somewhere.

Section 10 of the Lands Act provides for the renewal of the Presidential lease
upon expiry. In Chilufya V Kangunda,38 the appellant was allocated a property
on state lease for a period of 14 years from 1 st January 1978 and was issued with a
Certificate of Title. Unknown to the appellant, the respondent fraudulently
obtained a certificate of title to the same property. The respondent sued the
appellant for vacant possession of the property. The learned trial Judge
considered that because the respondent had been granted a certificate of title,
this was conclusive evidence of title pursuant to section 54 of the Lands and
Deeds Registry Act. Further, the learned trial Judge considered that the
appellant’s lease had expired and that the appellant was only entitled to
compensation in respect of the unexhausted improvements he effected. In the
course of delivering the Judgment of the Supreme Court, Ngulube, C.J, as he
then was, observed and commented thus:-

A major drawback in the approach adopted below was that the learned trial judge made
a fundamental mistake in treating a state lease of land which conferred ownership or
proprietorship and title and which obliged the lessee to develop the land as if it were an
ordinary landlord and tenant lease for a term certain which then simply expires by
effluxion of time. The lease here did not and could not terminate automatically and it
conferred rights at expiry under the state’s covenants under the lease and, above all, by
statute: To wit, the appellant had to get a 99 year lease as of right unless there was
major default. It is unthinkable-since most land was converted to Leasehold-that at the

37
See Johnson Land Commission Report Government Printer, Lusaka, p.46
38
(1999) ZR 166. (S.C).

266
 end of the various leases, owners of property who have invested and developed them
can come and lose these at the mercy and whim of officials of the state. The learned trial
judge made no reference whatsoever to Section 10 of the Lands Act, Cap. 184, which
clearly applied. Section 10 reads:-

“10(1) The President shall renew a lease, upon expiry, for a further term not
exceeding ninety-nine years if he is satisfied that the lessee had complied with or
observed the terms, conditions or covenants of the lease and the lease is not liable to
forfeiture.

“(2) If the President does not renew a lease the lessee shall be entitled to
compensation for the improvements made, on the land in accordance with the
procedure laid down in the Lands (Acquisition) Act.”

We have not forgotten the valiant effort put up by Mr. Matibini who tried to defend the arguments below that
the fourteen years lease simply lapsed or expired. We still recall his attempt to persuade us to presume that
there must have been the relevant breach of covenant on the part of the appellant which enabled the
Commissioner of Lands to exercise his discretion by re-entering and re-allocating the land. These arguments
and submissions flew in the teeth of the law and the clear facts. There was in this case a very crude fraud
and the result of the appeal already announced was inevitable

(e) Re-entry- Section 13 of the Lands Act of 1995 - Right to compensation following re-entry- Article 16 of the
Constitution- protection from deprivation of property - Lands tribunal unfettered by the pleadings or
technicalities and is expected to do justice to the parties after it has concluded its enquiry.

GOSWAMI v COMMISSIONER OF LANDS [2001] ZR 31

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

The appellant used to own Stand No.8492, Lusaka that she purchased from someone who had also
purchased it from another person.  There was a covenant requiring the erection of developments of not less
than Twenty Thousand Kwacha, a condition long satisfied by the previous owners, as witness the state’s
consent to assign on the various assignments of the property when the values of the un exhausted
improvements had to be stated and verified.  This land was repossessed by the 2nd respondent who served a
notice of re-entry for breach of the covenant to pay ground rent and allegedly for breach of the development
clause.  Following the deportation of her husband, the appellant lived abroad with him and it was not in
dispute that the property was generally abandoned and neglected.  As Mr. Kachamba put it in relation to the
issue of compensation, to which we shall be turning in a moment, the buildings there were in a sorry state.   
The notice was served on a watchman and after the re-entry, the land was swiftly allocated to the 1 st
respondent and a certificate of title issued to him.

Mr. Banda argued that the speed with which the transaction was done to deprive a citizen of her land and
give it in record time to another person showed there was injustice which the Lands Tribunal (from whose
decision this appeal comes) should have taken into account to invalidate the re-entry and repossession.  
Another ground for invalidation which was urged upon us was that though it was in order to serve notice of
re-entry on the watchman, who was an adult person found on the plot, the failure to call him as a witness
should have raised doubts whether there was any proper service.  We regarded this ground to have fallen of
its own inanition.  The re-entry was without a doubt effective and these arguments are unsuccessful.

The ground of appeal which had force and unarguable merit in it concerned the failure by the Tribunal to
award compensation.  As the learned State Counsel pointed out, our Constitution does not countenance the
deprivation of property belonging to anyone without compensation:  See Article 16.  The attitude of the 2nd
respondent which appears to have been accepted by the Tribunal was that as long as the re-entry was
lawful, there would be no need to pay adequate and proper compensation.  This was wrong and Mr.

267
 Kachamba very properly conceded in this court that he would not resist an order for the payment of
compensation.  Compensation, let it be stressed, was payable to the dispossessed owner of land whether
the re-entry was for good or for bad cause.  The only bone of contention was the amount of compensation as
between the market value of K35million deposed to by the appellant’s witness.  Mr. Kapalu and the derisory
sum of K3 million suggested by the Government’s witness Mr. Sangulube who conceded he did not take into
account the market value of the developments and who had prepared a report ostensibly to justify the re-
entry.  The allegations made to justify the small value placed on the buildings, the wall, the borehole and tank
(excluding the materials on site) was that the structures were illegal and had no planning permission.   These
allegations had no support from the evidence and flew in the teeth of the Government’s previous conduct
when other previous owners applied for state’s consent to assign.  The 2nd respondent cannot be estopped
by the same office’s previous conduct and dealings.

The right to compensation was clearly unarguable.  We have not forgotten Mr. Mubonda’s submission that
compensation which is not specifically pleaded should not be awarded.  The tribunal is in fact not one
fettered by legalistic formal pleadings or technicalities and it is expected to do justice to the parties on the
case as found after it has conducted its inquiry.  Even the Lands Tribunal is not exempt from observing the
requirements of the Constitution of the country.  That said, the appellant was very clearly entitled to
compensation in the sum of K35million payable by the Government.  This is the sum which more
approximates the real value of the property and which meets the justice of this case.  Accordingly, the appeal
is allowed and judgment is entered for the appellant in the sum of K35 million as compensation for the
property taken away from her.

Most of the re-entries done by the Commissioner of Lands on (behalf of

the President) have been challenged in both the High Court and the Lands
Tribunal mostly on the ground that the affected lessees were not served
with notices of intention to re-enter. Most of these challenges have
succeeded. The Supreme Court in the case of Kabwe and Another v Daka
and Others,39 commented and observed thus on the mode of service of the
notice of intention.

The mode of service of the notice of intention to cause a certificate of re-

entry to be entered in the register for a breach of covenant in the lease, as
provided for in Section 13(2) of the Lands Act, is cardinal to the
validation of the subsequent acts of the Commissioner of Lands in
disposing of the land to another person. We say so because if the notice is
properly served, normally by providing proof that it was by registered
post using the last known address of the lessee from whom the land is to
be taken away, the registered owner will be enabled to make
representations, under the law, to show why he could not develop the land
within the period allowed under the lease.If the land is eventually taken
over because of being in breach, despite the warnings from the
Commissioner of Lands, the registered owner cannot successfully
challenge the action to deprive him of the land. On the other had if the
notice is not properly served and there is no evidence to that effect, as was
the case here, there is no way the lessee would know so as to make
meaningful representations. It follows that a repossession effected in the
circumstances where a lessee is not afforded an opportunity to dialogue
with the Commissioner of Lands, with a view to having an extension of
39
SCZ Judgment No. 5 of 2006- Appeal No. 162 of 2003. [unreported]

268
 period in which to develop the land, cannot be said to be a valid
repossession. In our view, the Commissioner of Lands cannot be justified
in making the land available to another developer.
(G) Lands Tribunal-Jurisdiction limited to the settlement of ‘land disputes’ under the Act.

MWANGELA And ANOTHER v NDOLA CITY COUNCIL 2000 (ZR) 131

[ The facts of the case appear in the Judgment of the supreme Court delivered by Lewanika J.S, as he then
was.]

This is an appeal against the decision of the Lands Tribunal on a question referred to it by the Appellant.
The Lands Tribunal was asked to determine whether it was fair and just for the 2nd Respondent to assign
house No.9, Mwenda Road, Itawa, Ndola to the 1st Respondent when the Appellant was entitled to it as an
occupier by virtue of the Ministry of Local Government and Housing circular dated 2nd May, 1996 on revised
procedures for the sale of Council houses.

The appellant had also sought the following reliefs:-

1. An order to quash the decision of the 2nd respondent to assign the house in issue to the 1st
respondent.
2. An order of mandamus for the 2nd respondent to assign the house to the appellant.
3. Any other order or relief the Tribunal may deem fit.

…There is one issue on which we wish to comment which did not arise in the appeal before us but was
raised in the proceedings before the Lands Tribunal and this relates to the jurisdiction of the Lands Tribunal.
The Lands Tribunal is a creature of statute having been established by Section 20 (1) of the Lands Act, Cap.
184 of the Laws of Zambia. Part II of the Act which contains Section 3 to 15 deals with the administration of
land in Zambia. Section 15 of the Act provides as follows:

(1) any person aggrieved with a direction or decision of a person in

authority
may apply to the Lands Tribunal for determination.
(2) In this section "person in authority" means the President, the
Minister or the Registrar.

The Jurisdiction of the Lands Tribunal is contained in Section 22 of the Act which provides as follows:-

22. The tribunal shall have jurisdiction to-

(a) Inquire into make awards and decisions in any dispute relating to land under this Act;
(b) to inquire into and make awards and decisions relating to any dispute of compensation to be paid
under this Act;
(c) generally to inquire and adjudicate upon any matter affecting the land rights and obligations, under
this Act, of any person or the Government; and
(d) to perform such acts carry out such duties as may be prescribed under this Act or any other written
law.

In our considered opinion a reading of Sections 15 to 22 of the Lands Act shows quite clearly that the
jurisdiction of the Lands Tribunal is limited to the settlement of "land disputes" under the Act and is not an
alternative forum to the High Court where parties can go to even for the issuance of prerogative writs such as
mandamus. In these proceedings the appellant was seeking to impugn a Certificate of Title issued to the 1st
respondent and under the Lands and Deeds Registry Act, Cap 185 of the Laws only the High Court has

269
 jurisdiction to entertain such proceedings. As we have stated earlier on, although the point was not taken up
before us, the Lands Tribunal had no jurisdiction to entertain these proceedings.

The principle established by the Supreme Court in relation to the Lands

Tribunal’s powers to order cancellation of title deeds is that the tribunal
had no jurisdiction or powers to do so under the Lands Act and that it
could only recommend to the Commissioner of lands as to what to do
with a certificate of title in issue and not to order cancellation of the same.
This principle was reiterated by the Supreme Court in a number of cases
or appeals emanating from the Lands Tribunal. In Attorney General,
Ministry Of Works And Supply v Frazer And Another, 40 Sakala,J.S (as he
then was) in delivering the judgment of the Supreme Court observed and
commented thus in relation to the powers of the Lands Tribunal to order
cancellation of title deeds:-

…The question of the Lands Tribunal’s jurisdiction

to cancel Certificates of Title for any reason has
already been settled by this court in a number of
cases emanating from the Lands Tribunal. One of
the recent cases is that of Adetayo Oduyeni and
Two Others v Atlantic Investments Ltd.41 The
appeal in that case was against a decision of the
Lands Tribunal ordering that a Certificate of Title
deeds be cancelled. We said in that case: Our short
answer to the submissions is that the Lands
Tribunal has no jurisdiction to order cancellation of
Certificate of Title in land matters. In terms of the
Lands and Deeds Registry Act CAP 185, the
jurisdiction to order cancellation of Certificate of
Title Deeds lies with the High Court and not the
Lands Tribunal. The Lands Tribunal can only
recommend cancellation. This is what in effect we
said in Mwangela V Nsokoshi and Ndola City
Council. Although the Lands Tribunal was correct
in doing substantial Justice, their power is limited
to recommending to the Commissioner of Lands as
to what to do with a Certificate of Title Deeds in
issue and not to order cancellation of the same.42

40
(2001) ZR 87 (SC).
41
SCZ Appeal No. 130 of 2000.
42
Pages 91-92

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In a decision delivered by the Supreme Court in October 2005, the Court failed to
follow the principle established by itself and repeated in several cases that the
power of the Lands tribunal was limited to recommending to the Commissioner
of lands (sometimes the Registrar of Lands and deeds) as to what to do with a
certificate of title in issue and not to order cancellation of the same. This was in
the case of Diocese of Monze v Mazabuka District Council and others. 43 In this
case the Supreme Court stated that the Lands Tribunal has no Jurisdiction to
entertain a complaint over land if either party to the complaint has title deeds.
The Supreme Court went on to state that the Lands Tribunal should come up
with a deliberate policy not to accept any complaint in which a Certificate of title
was involved. The lack of consistency by the highest court of the land, as
exhibited by this decision, is a matter of concern. Zambia being a common law
Jurisdiction follows the principle of binding precedents or Stare Decisis i.e the
‘sacred principle’ of English law by which precedents are authoritative and
binding and must be followed by lower courts. One often cited advantage of the
system of stare decisis is that it leads to consistency and predictability of court
decisions. The decision in Diocese of Monze does not lead to predictablility and
consistency in court decisions.

As a result of this decision the Lands Tribunal stopped accepting any complaint
in which a certificate of title was issued. The Lands Tribunal went further by
stopping to adjudicate on cases involving title deeds that were already in the
process of being heard. The Diocese of Monze case is reproduced hereunder.

Diocese of Monze v Mazabuka District Council and 3 others

[SCZ Judgment No. 16 of 2005 - Appeal No 115 of 2002
[The facts of the case appear from the Judgment of the Supreme Court delivered by Silomba J.S]

This appeal is against the judgment of the Lands Tribunal delivered on the 12 th day of April, 2000 in which the tribunal
ordered the re-planning of farm no. 576, Nega Nega in Mazabuka District. The evidence before the Lands Tribunal
was that the appellant was the holder of a certificate of title over subdivision A of farm No. 576, in extent 40 hectares.

The appellant acquired the piece of land sometime in 1988 through the 1 st respondent who recommended the
application to the 3rd respondent for the issuance of a title deed. According to the evidence of Mr. Mostead Mugala, the
land was earmarked for the development of Nega Nega Youth Project under the auspices of the appellant. The
beneficiaries were the youths of the diocese and the courses to be offered to the youths were leather tanning, tailoring,
agricultural production and other general activities in agriculture and horticulture.

As the appellant began to develop the land, the 2 nd respondent, who had initially supported the application of the
appellant as Councilor for the area, as well as, chairman of the Plans and Development Committee of the 1 st
respondent that approved the allocation of land to the appellant, became interested in the land. He told the appellant
that he had been given 39 hectares of the same land. The witness told the Lands Tribunal that they could not believe
him as they had title to the land and had already effected improvements on it.

43
SCZ Judgment No. 16 of 2005, Appeal No 115 of 2002.

271
As if that was not enough, the 2 nd respondent moved on the land sometime in 1992 with a certificate of title over
subdivision B of farm No. 576 and started constructing his house. Apparently he had acquired a ninety-nine year lease
to the same land as opposed to the fourteen-year lease held by the appellant.

It was on that basis that the appellant complained to the Lands Tribunal. There was no evidence adduced before the
Lands Tribunal by the 2nd respondent. However the record of appeal shows that the 2 nd respondent personally cross
examined all the witnesses of the appellant. The argument of the appellant before the Lands Tribunal was that it was
the registered owner of subdivision A of farm No. 576. That being the position, the appellant did not accept the
decision of the 1st respondent to give a portion of its land, late numbered as subdivision B of subdivision A and leaving
the appellant with only one hectare.

The Lands Tribunal considered the evidence before it and as we have already pointed out in this judgment, the
Tribunal ordered the re-planning of the farm. It was further ordered that once the farm was re-planned a portion of it,
not measuring more than 5 hectares in extent, should be allocated to the second respondent to accommodate his
improvements while the remainder be retained by the appellant.

There were three grounds of appeal that were filed under the memorandum of appeal. At the time the appeal was
argued, Counsel for the appellant only indicated two grounds of appeal in her heads of argument. We shall not
reproduce the two grounds of appeal in this judgment for the reasons that will soon follow.

It was the general consensus of the advocates representing the parties herein that the Lands Tribunal has no
jurisdiction to entertain the complaint that entailed making an order for the cancellation of a certificate of title, by way of
rectification of the register, because the power to do so was vested in the High Court under section 11(2) of the Lands
and Deeds Registry Act, Chapter 185 of the Laws.

In her response to the concern raised by the court on the issue of jurisdiction of the Lands Tribunal, Counsel for the
appellant admitted that she went to a wrong forum and that by accepting to deal with the complaint, the Tribunal acted
in excess of its jurisdiction. The response of Counsel for the 2 nd respondent was simply to concede that the lack of
jurisdiction could not be cured on appeal, thereby rendering the proceedings in the Lands Tribunal a nullity. He was of
the view that if the appellant were to get the remedies it was seeking, it was incumbent upon it to commence an
appropriate action in the High Court.

Even if the Tribunal did not make any specific order to counsel the certificate of titles, the order to re-plan the farm
consequentially meant , in our considered view, that the existing title deeds held by both the appellant and the 2 nd
respondent were to be cancelled to allow for the re-numbering and re-surveying of two new portions that were to be
created as a result of the re-planning exercise before fresh title deeds could be issued.

We have said in many of our decisions that the Lands Tribunal has no jurisdiction to entertain a complaint over land if
either party to the complaint has title; the only court that has legal authority to order the Chief Registrar of Lands and
Deeds to rectify the register and cancel a certificate of title is the High Court. However the several opinions of this
court were never heeded by the previous membership of the Lands Tribunal as this case will clearly show. From the
appeals we have had so far, it seems that the trend is continuing even under the current membership.

Until the Lands and Deeds Registry Act is amended, if ever it will be amended, to shift the power to cancel a title deed
to the Lands Tribunal from the High Court, the former has no choice but to come up with a deliberate policy not to
accept any complaint in which a certificate of title is involved. That way, the Lands Tribunal will be seen to be
genuinely involved in the dispensation of quality justice, which will not only reduce litigation costs, but also enhance
accessibility to justice.

With these comments, we declare the proceedings in the Lands Tribunal a nullity for lack of jurisdiction. Consequently
we decline to entertain the appeal because it is incompetent or misconceived. The issue of compensation for the
structures put by the 2nd respondent, as canvassed by counsel, cannot be resolved on appeal because the
proceedings in the Lands Tribunal were a nullity. We think that when a fresh action is instituted in the High Court, this
and other issues can be raised before that court.

272
The Lands Tribunal was established under the Lands Act to make provision for
the dispensation of Justice and efficient resolution of disputes as well was a way
of reducing the cost of litigation in land matters. The jurisdiction of the Land
Tribunal is, however, very limited to the extent that the tribunal has not been
effective in its operation. The Diocese of Monze decision effectively undermined
the credibility and efficacy of the Lands Tribunal. There is urgent need to
strengthen the Tribunal by widening its jurisdiction. It is proposed that the
Tribunal should have the same jurisdiction as that enjoyed by the High Court in
land matters including the powers or jurisdiction to order cancellation of title
deeds. The Tribunal should have jurisdiction to order the Chief Registrar of
Lands and Deeds to rectify the register and cancel a Certificate of title. Currently
only the High Court is empowered to do so under the provisions of the Lands
and Deeds Registry Act. There is need to amend the Lands and Deeds Registry
Act so that the Lands Tribunal can have concurrent jurisdiction as that enjoyed
by the High Court under the Lands and Deeds Registry Act.
The jurisdiction of the Lands Tribunal should also be widened to cover all land
disputes not only those emanating under the 1995 Lands Act, but also to cover
disputes arising under the Housing (Statutory and Improvement Areas) Act. At
the operational level there is need to decentralize the Lands Tribunal. Currently
the operations of the Tribunal are centralized in Lusaka. In terms of appointment
of the Chairman and his Deputy, it is proposed that persons occupying these
positions should be nominated by the Judicial Services Commission and
appointed by the President subject to ratification by National Assembly. Further,
these persons should enjoy security of tenure during the duration of their
appointment as that enjoyed by Judges. If these suggestions, including improved
budgetary allocation, are implemented the Lands Tribunal, borrowing the words
of Mr. Justice Silomba in the Diocese of Monze case, “will be seen to be genuinely
involved in the dispensation of quality justice, which will not only reduce litigation cost,
but also enhance accessibility to Justice.”

13.4 PROPOSED CONSTITUTIONAL ENACTMENTS RELATING TO

LAND-THE MUNG’OMBA DRAFT CONSTITUTION

13.4.1 INTRODUCTION

On 17th April, 2003 President Mwanawasa in exercise of the powers under

the inquiries Act,44 appointed a Commission, chaired by one Mr. Willa
Mung’omba, to review the Constitution of Zambia. The Constitution
Review Commission had thirty one terms of references. 45 There were no
explicit terms of reference relating to land. However there were three
44
Chapter 41 of the Laws of Zambia.
45
See Statutory Instrument no. 40 of 2003.

273
 terms of reference which had a bearing on land. These were terms of
reference numbers 5,16, and 30.
Term of reference Number 5 mandated the Commission to:

”Examine and recommend the elimination of provisions which are

perceived to be discriminatory in the Constitution .”

Term of reference Number 16 mandated the Commission to:

“Examine and recommend to what extent issues of

gender equality should be addressed in the Zambian
Constitution: and”

Term of reference Number 30 mandated the Commission to:

“Examine and recommend on any matter that is connected

with or incidental to the foregoing terms of reference.”

The Commission considered these terms of reference as giving it the

mandate to gather people’s views on land.46 The Commission submitted
its interim report and Draft Constitution to the President on 22 nd June
2005. The Government issued its reaction to the Constitution Review
Commission draft Constitution on 31 st October 2005.47 The final draft was
submitted in December 2005.

The Commission received Five Hundred and Twenty Two (522)

submissions relating to the subject matter of land. 48 From the different
concerns raised by the petitioners the Commission felt that the
constitution should be explicit on the subject of land. 49 The Commission
however, observed that constitutional provisions relating to land needed
not to be extensive because the subject would be better provided in the
appropriate legislation on land matters 50. The following were some of the
submissions and recommendations of the Commission.

13.4.2 VESTING OF TITLE51

The Commission received different views on the issue or principle of

vesting of title. Some petitioners submitted that land under traditional
authority should be vested in chiefs. Some petitioners on the other hand

46
See Chapter 24 (dealing with land) of the Interim Report of the C.R.C at page 762. C.R.C 29 th June 2005.
47
See Government’s reaction to the CRC Draft Constitution, 31st October 2005, Republic of Zambia.
48
See page 768 of the Interim Report of the C.R.C.
49
Ibid.
50
Ibid.
51
This aspect is dealt with at pp. 768-770 of the Interim Report of the Constitution Review Commission.

274
 felt that all land should be vested in the chiefs on behalf of the people of
Zambia. A few petitioners submitted that traditional rulers should have
no authority over land. The House of Chiefs, on the other hand,
submitted that State land should vest in the President while customary
land should vest in chiefs on behalf of their subjects.

The Commission noted that the majority of petitioners on the subject

wanted land under traditional Authority to be vested in the Chiefs. The
Commission however felt that the demand for land under customary
tenure to be vested in chiefs was “partly inspired by the misconception that
the vesting of all land in Zambia in the President entails that the President owns
the land in his right and not for or on behalf of the people.” The Commission
felt that the Constitution should address the subject of vesting of land.
The Commission felt that all land in Zambia should continue to be vested
in the President for purposes of administration and regulation. The
Commission further noted that in the vesting of all land in the president it
should be added in the Constitution that this vesting was “for the use or
common benefit direct or indirect of the people of Zambia”. According to the
Commission this constituted “an assurance and guarantee that there will be no
abuse in the management, use and disposition of land to the detriment of the
people of Zambia”.

The Commission’s recommendation on the issue of vesting was that the

constitution should explicitly provide that52:

 All land in Zambia belongs to the citizens of Zambia and shall be vested in the
President on behalf of the citizens for purposes of administration and
regulation, for the use or common benefit, direct or indirect of the citizens of
Zambia: and

 In the regulation and administration of land, local authorities and Chiefs

should have a part to play within the context of devolution of power.

13.4.3. ACCESS, ACQUISITION, HECTARAGE AND OWNERSHIP53

On the subject of access to, acquisition and ownership of land the

Commission noted that the petitioners addressed a range of issues. The
majority of petitioners wanted citizens to have the right of access to land
and the right to acquire and own land. The Commission noted that many
petitioners were not in favour of non Zambians owning land. The
Commission further noted that the problem of accessing and owning land
was further compounded by the fact that the process was highly

52
Ibid p770.
53
See pages 770-777 of the Interim Report of the Constitution Review Commission.

275
 centralized. This made the process of acquiring land costly in terms of
time financial and other resources.

The Commission considered that “in view of the importance of land to

citizens’ livelihoods the right of access to and right to acquire land should be made
explicit in the Constitution and include gender equity considerations54.”

On the issue or aspect of non-Zambians owning land, the Commission

first noted that under the Lands Act, foreign individuals or entities could
own land and in case of a Company or a Cooperative society it was a
requirement that at least 75% of the issued shares should be owned by
Zambians. The Commission observed that “some foreign investors have
taken advantage of the weakness in the Act by using Zambians as “fronts” for the
sole purposes of owning and obtaining title to land.” 55 The Commission was of
the view that this practice deprived Zambian citizens of the opportunity
to own land and posed, the danger that “vast tracts of land will gradually be
lost to non-Zambians.”

The Commission observed that there was no legal restriction on the

number of hectarage that a person could acquire. The Commission was of
the view that the amount of land a person should be entitled to acquire
can be regulated within the framework of the existing law. The
Commission was further of the view that the law should make a
distinction between citizens and non-Zambians in their respective
entitlement to land.
On conversion of customary tenure, the Commission was of the view that
the Act should make provision that land held under leasehold tenure
which was previously held under customary tenure shall convert to
customary tenure on re-entry, voluntary surrender or compulsory
acquisition.

On the issue of assigning or subdividing undeveloped land, the

commission was of the view that although land has value there should be
legislation to regulate against speculation and subdivision of undeveloped
land.56

The Commission’s recommendations were that:-

 Citizens shall have the right of access to and right to acquire land without
any impediment, all conditions of acquisition having been met and, at the
expiry of a lease, the lease shall be renewed as a matter of right;

54
Ibid page 773.
55
Ibid page 773.
56
ibid, page 775 – 776.

276
  Women shall have the right of access to and the right to own and acquire
property; and
 The Constitution shall guarantee to all Zambians the right to communal
use and access to islands, river frontages and lakeshores and these shall
not be sold, leased or fenced off for private use.

With respect to non-Zambians acquiring land in Zambia, the Constitution

should explicitly state that these shall be entitled as follows:

 An investor within the meaning of investment laws of the country;

 A company incorporated in Zambia by non-Zambians of which 75% or

more of its shares are owned by Zambians;

 A non-Zambian statutory corporation created under an Act of

Parliament;

 A non-Zambian registered co-operative society with less than 25% of its

membership being non-Zambian;

 A non-Zambian body registered under the Land (Perpetual Succession)

Act which is non-profit making, charitable, religious, educational or
philanthropic, and approved by the Minister responsible for lands’

 Where the interest or right is being inherited or being transferred through

survivorship or operation of law to a non-Zambian

 A non-Zambian commercial bank registered under the Laws of Zambia; or

 A non-Zambian granted a concession or right under the Zambia Wildlife

Act, No. 12 of 1998.

The Commission further recommended that:

 Individual title to land, whether in State land or customary tenure, should

be made available through appropriate legislation. In customary tenure,
there should be included in the legislation that the Local Authority and
Chief can withhold consent for a good cause; and
 The amount of land to be alienated in individual cases should be left to the
appropriate legislation and the existing regulation under the leasehold
system.

277
 In relation to conversion of tenure, the Commission recommended that
the Lands Act should make provision that land held under leasehold
tenure, which was previously held under customary tenure, shall revert to
customary tenure on re-entry, voluntary surrender or compulsory
acquisition.

The Commission further recommended that the Lands Act should make
provision that:
 If land under leasehold tenure is not developed, it should be
repossessed by and revert to the State and if the leasehold was
originally customary tenure, it should revert to customary tenure

13.4.4 DURATION OF TENURE57

On the subject of duration of tenure, the majority of the petitioners were of

the view that the period of leasehold should be reduced from the current 99
years, while a few wanted the duration to remain unchanged. Those who
favored the idea of reducing the duration had argued that this would make it
easy to repossess and re-distribute undeveloped land. The Commission was
of the view that “reducing the duration of leasehold tenure would be an
unnecessary impediment on security of tenure. Leasehold tenure should remain at 99
years, as this gives adequate time to the lessee and subsequent generations to develop
and utilize the land.”

The Commission further noted that repossession and redistribution of

undeveloped land could effectively be done through regulatory measures
within the existing laws and the leasehold tenure system. The Commission’s
recommendations on the duration of tenure were that;58

 Both existing tenure systems should be allowed to evolve and develop into a
system that would provide better security and access to land for the majority of
Zambians and
 Leasehold of land should remain 99 years in order to allow Zambians optimum
utilization of their land, but repossession and re-entry of undeveloped land should
be left to the appropriate legislation and the existing regulations under the
leasehold system.

Office of the Commissioner of Lands.59

The Commission observed that land was of vital importance and that there was
need for accountability and transparency in its management. The Commission

57
Ibid pages 777-778.
58
Ibid 778.
59
Ibid 778-781.

278
noted that the current status was that the President had delegated the day to day
administration of land matters in the Republic to the Commissioner of Lands.
The Commission further noted that the Commissioner of Lands has powers to
make grants and dispositions of land to any person, subject, to special or general
directions of the Minister responsible for land. The Commission observed that
apart from Statutory Instrument No. 7 of 1964 and Circular No.1 of 1985, there
was no statute defining the authority, jurisdiction and powers of the
Commissioner of Lands. The Commission was of the view that the
Commissioner of Lands should not be responsible for approval and allocation of
land because “this is too vast a function to be discharged by an individual.” After
making references to the Constitutions of Uganda and Ghana, which both
establish a Lands Commission, the Commission was of the view that while still
retaining the office of Commissioner of Lands, a Lands Commission should be
established by the Constitution. The Commission’s recommendations were that
the Constitution Should:

 establish a Lands Commission:

 Provide that functions of the Lands Commission should include to hold, alienate
and manage any land in Zambia in accordance with the provisions of the
Constitution and other laws, including regular review of the status of all land
leased to Zambians and non-Zambians, and to carry out such other functions as
may be prescribed by an Act of Parliament.
 State that the Lands Commission shall comprise the Commissioner of Lands and
five members to be selected from various institutions , including the Government.
 Provide that members of the Commission shall be appointed by the President,
subject to ratification by the National Assembly, for a non-renewable term of
three years:
 Provide that members of the Lands Commission may only be removed from
Office for inability to perform the functions of the Office arising from infirmity of
body or mind, or for incompetence or misconduct:
 Re-establish the Office of Commissioner of Lands and provide that the
Commissioner shall be appointed by the President and ratified by parliament:
and
 The Office of the Commissioner of lands shall carry out the functions of the
Office under the supervision of the Lands Commission.

13.4.5 LANDS TRIBUNAL - COMPOSITION AND JURISDICTION

On the Lands Tribunal, the Commission was of the view that the Tribunal
should be strengthened in order to enhance its effectiveness in its
operations. The Commission’s recommendations were that :-
 The jurisdiction of the Lands Tribunal should be widened to cover all land
disputes under the Lands Act and those arising under the Housing
(Statutory and Improvement Areas) Act; and

279
  The Lands Tribunal should be decentralized.

Most of the recommendations in the Interim Report of the Commission

were finally incorporated under the draft Constitution. 60 Government in
its reaction accepted some recommendations as incorporated under the
Draft Constitution, though it was generally of the view that most
provisions should be provided for under Acts of Parliament and not
under the Constitution. Government outrightly refused to accept the
recommendation relating to the creation of the National Lands Board and
those relating to the office of Commissioner of Lands.
Following the expiry of the period given for public reaction to the Draft
Constitution, the Commission finally came up with the ‘final’ draft
Constitution.61 Most, if not all of the recommendations as incorporated in
the first draft Constitution of 29th June ,2005, including those which
Government had rejected in its reaction to the Commission Interim report,
were incorporated in the ‘final’ Draft Constitution.62

The proposed Constitutional Provisions relating to land which fall under

part XIX of the final draft constitution (apart from article 65 which falls
under the proposed bill of rights) entitled “Land and Property” are briefly
discussed below.

Article 65, which falls under the proposed bill of rights, provides for the
right of individuals to access, acquire and own land and other property
either individually or in association with others. The Article also provides
for the protection against deprivation of property by the state. To a large
extent this article is a re-enactment of Article 16 of the current
Constitution, which provides for protection from deprivation of
property.63 Article 65 of the final Draft Constitution provides that:-

(1) Every person has a right to access, acquire and own land and other
property either individually or in association with others.
(2) The State shall not deprive a person of property of any description
or of any interest in or right over property, except under an Act of
Parliament.
(3) Legislation shall not authorise deprivation of any interest in or
right over property of any description, except -

60
See the Draft Constitution of the Republic of Zambia. Secretariat , CRC Lusaka 29th June 2005, See Part
XIX of the Draft Constitution entitled “Land and Property”
61
Ibid.
62
See draft Constitution of the Republic of Zambia , 29th December,2005- Land and Property, Articles
327-338.
63
The Article is dealt with under Chapter 14 of this book dealing with Compulsory acquisition of property
in Zambia.

280
 (a) where deprivation of any interest in or right over property
is justifiable balancing -
(i) the public benefit; and
(ii) hardship that may result to any person who has an interest
in or right over the property;
(b) where the legislation specifies the consequence for non-
compliance with the law;
(c) where a property consists of a licence or permit; and
(d) to the extent permitted under this Constitution.
(4) Subject to this Constitution, prompt payment of full and fair
compensation shall be made prior to acquiring, assuming
occupation or possession of any property, as provided under an
Act of Parliament.
(5) Every owner of -
(a) a leasehold interest in land has the right to be issued a
certificate of title setting out that interest and, at the expiry
of the lease, to a renewal of the lease; and
(b) any other right or interest in land has the right to register
that right or interest.
(6) The rights recognised and protected under this Article do
not apply to any property that has been unlawfully
acquired.

Article 327 of the proposed Constitution provides for the basis of land
policy of Zambia. The Article provides that:-

The land policy of Zambia shall ensure –

(a) equitable access to land and associated resources;
(b) equitable access and ownership of land by women;
(c) security of land rights for land holders;
(d) sustainable and productive management of land resources;
(e) transparent and cost effective administration of land;
(f) sound conservation and protection of ecologically sensitive
areas;
(g) cost effective and efficient settlement of land disputes; and
that river frontages, islands and lakeshores are not leased,
fenced or sold.

Article 328 of the proposed Constitution provides for classification of land

in Zambia. The article provides that:-

281
 All land in Zambia shall be classified as customary land, State
land or such other classification as may be provided by or under an
Act of Parliament, and shall be delimitated in accordance with an
Act of Parliament.

Under the 1995 Lands Act, land is classified either to be Customary area
(formerly Reserves and Trust lands) which is defined under the Act to
mean ‘land which is not situated in a customary area.”

Article 329 provides the constituents of stateland. The Article provides

that:-

(1) State land is –

(a) land held by any person under leasehold tenure;
(b) land which at the commencement of this Constitution was
unalienated State land as defined by an Act of Parliament;
(c) land lawfully held, used or occupied by any government
Ministry, department, agency or local authority;
(d) land on or under which minerals are found as specified
under law;
(e) land in respect of which no heir can by ordinary legal
process be identified;
(f) land occupied by, or through which, any natural resource
passes including gazetted or declared national forests,
game reserves and water catchment areas, rivers and other
natural flowing water resources, national parks, animal
sanctuaries and specially protected areas;
(g) any land not classified as customary land under this
Constitution; and
(h) any other land declared as State land by an Act of
Parliament.
(2) State land shall not be alienated or otherwise used except in
terms of legislation specifying the nature and terms of that
alienation or use.
The constituents of state land are provided for under Article 330 of the
proposed Constitution. The Article provides that:-

(1) Customary land is land held by communities identified on

the basis of tribe, residence or community of interest.
(2) For the purposes of clause (1), customary land includes –
(a) land customarily held, managed or used by specific
communities as community forests, grazing areas
or shrines;

282
 (b) land lawfully alienated to a specific community by
any process of law;
(c) ancestral lands traditionally occupied by an ethnic
community; and
(d) any other land declared to be customary land by an
Act of Parliament.
(3) Customary land shall not be alienated or otherwise used
until the approval of the chief and local authority in whose
area the land is situated has first been obtained and as may
be provided by or under an Act of Parliament.
(4) An approval under clause (3), shall not be unreasonably
withheld.
Article 331 of the proposed Constitution provides for the vesting of land
in the President in trust and on behalf of the people of Zambia. The Article
provides that:-

(1) Land in Zambia is vested in the President and is

held by the President in trust for and on behalf of the
people of Zambia.
(2) All land in Zambia shall be administered and controlled for
the use or common benefit, direct or indirect, of the people
of Zambia.
(3) Subject to clause (3), the President may, through the Lands
Commission, chiefs or local authorities, alienate land to
citizens or to non-citizens, as provided by this Constitution
and by or under an Act of Parliament.
(4) Subject to Article 330 (3), land situated in a district shall
be administered by the local authority in that district.

The land tenure of Zambia is provided for under Article 332 which
provides that:-

(1) Land in Zambia shall be alienated and held on the basis of

customary, leasehold or other tenure, as provided by this
Constitution or by or under an Act of Parliament.
(2) Subject to clause (1), State land may be held on a lease of
ninety- nine years or such lesser years as may be provided
by legislation for different categories of State land.
(3) A person who is not a citizen shall only be entitled to lease
land for a restricted period of time, as provided by an Act of
Parliament.
(4) Parliament shall enact legislation to provide for the
categories of non-citizens that may hold land and the
conditions under which they may do so.”

283
Article 333 of the proposed Constitution provides for the regulation of
land use and development of property. The Article provides that:-

(1) The State is empowered to regulate the use of any land,

Interest or right in land in the interest of defence,
public
safety, public order, public morality, public health, land use
planning or the development or utilisation of property.
(2) The State shall encourage and provide a conducive social,
economic, political and legal environment for the creation,
development and management of property.
(3) Parliament shall enact legislation ensuring that major
investments in land benefit local communities and their
economy.

The office of the Commissioner of Lands is provided for under Article 334
of the proposed Constitution. The Article provides that :-

(1) The office of Commissioner of Lands is a public office and

the Commissioner of Lands shall be appointed by the
President, subject to ratification by the National Assembly.
(2) The Commissioner of Lands shall be the chief
administrator of the Lands Commission and shall perform
the functions of office under the supervision of the Lands
Commission.
(3) The term of office of the Commissioner of Lands shall be
five years, subject to renewal or until the person attains
retirement age as specified by an Act of Parliament.

Article 335 of the proposed constitution provides for the establishment of

the Lands Commission. The Article provides that:-

(1) There is hereby established a Lands Commission which

shall consist of the Commissioner of Lands and four other
part –time members appointed by the President, subject to
ratification by the National Assembly.
(2) Parliament shall enact legislation to provide for the Lands
Commission, its financial resources and financial
management, procedures, administration, appointments,
qualifications, promotions, transfer, retirement and
discipline of staff, including the Commissioner of Lands,
and generally for the functioning of the Commission.

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 (3) The Lands Commission shall establish offices in every
province.
(4) The expenses of the Lands Commission, including the
emoluments of the staff of the Commission, shall be a
charge on the Consolidated Fund.

Article 336 provides for the tenure of office of the members of the
proposed Lands Commission. The Article provides that :-

(1) A member of the Lands Commission, except the

Commissioner of Lands, shall hold office for a term of three
years, subject to renewal for only one further term of three
years.
(2) Parliament shall enact legislation providing for the
removal from office of a member of the Lands Commission.

The Functions of the proposed Lands Commission are provided for under
Article 337 of the proposed constitution. The Article provides that:-

The functions of the Lands Commission shall include the

following:
(a) administer, manage and alienate land on behalf of the
President;
(b) formulate and recommend to the Government a national
lands policy;
(c) advise the Government and local authorities on a policy
framework for the development of selected areas of Zambia
and to ensure that the development of customary land is in
accordance with the development plan for the area;
(d) advise the Government on, and assist in the execution of, a
comprehensive programme for the registration of leasehold
title in land throughout Zambia;
(e) conduct research related to land and natural resource use
and make recommendations to appropriate authorities;
(f) facilitate the participation of communities in the
formulation of land policies;
(g) monitor and have oversight responsibilities over land use
planning throughout the country; and
(h) any other function provided by or under an Act of
Parliament.

Article 338 of the proposed Constitution requires Parliament to enact

certain legislation. The Article provides that:-

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 Parliament shall enact legislation to –
(a) revise, consolidate and rationalise existing laws relating to
land;
(b) prohibit speculation in land;
(c) revise sectoral land use law in accordance with national
land policy;
(d) regulate the manner in which any land may be converted
from one classification or category to another;
(e) protect, conserve and provide equitable access to all State
land;
(f) enable the settlement of landless people including the
rehabilitation of spontaneous settlements of rural and
urban communities; and
(g) prescribe minimum and maximum land holding acreage in
arable areas.

13.5 Summary of Chapter Thirteen – By way of a General Commentary on

The 1995 Lands Act and The Proposed Constitutional Provisions
Relating to Land.
This chapter has examined and considered the Land reforms instituted by
the MMD Government in 1995 as well as the proposed constitutional
provisions relating to land under the Mungomba Final Draft Constitution.
The political changes that swept through the country in 1991 inevitably
led to the changes in the economic policies. Whilst the UNIP Government
essentially pursued socialist oriented economic policies, the MMD
Government which came to power after the 1991 elections, pursued liberal
economic policies. A private sector driven economy where both local and
foreign investors would participate was seen as the engine of economic
growth.
Under the repealed 1975 Act, the land market was a controlled or
regulated one. The economic liberalization pursued by the MMD
Government, also entailed the liberalization of the land market or less
interference by the State in the land market. This in turn required that all
the obstacles to a free land market embedded under the 1975 Act had to be
dropped. These obstacles, as pointed out in the preceding chapter,
included the notion that bare land had no exchange value, severe

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 restrictions on alienation of land to non-Zambians, and fixing of
maximum consideration for various transactions or dealings in land.

Before the enactment of the 1995 Lands Act, the issues of land
administration and control were governed or regulated under a host of
statutes and orders. These were the 1975 Lands Act, the Zambia (State
lands and Reserves) Orders, 1928 to 1964, the Zambia (Trust land) Orders,
1947 to 1964, the Zambia (Gwembe District) orders, 1959 to 1964 and the
Western Province (Land and miscellaneous provisions) Act, 1970. The
1995 Lands Act repealed all these statutes and Orders. The different
functions of the Orders and Statutes were harmonized under a single
Lands Act. This was a step in the right direction. The move to have a
single piece of legislation dealing with land administration and regulation
was in fact overdue. The Land Commission Report of 1967 had in fact
recommended the revocation of the various Orders (that regulated land
administration) by legislation which was to be entitled the Land
Administration Act64.
The 1995 Lands Act introduced a radical definition of land. Whether bare
or virgin, land has value by itself without having regard to human labour
or capital expended on it. The notion under the 1975 Act that bare land
had no value has been discarded. The conferment of value on bare or
virgin land has, however, led to the re-emergence of speculation of bare
land especially in urban Areas.
In terms of classification of land there existed three categories of land
under the repealed (Colonial) Orders as augmented by the repealed 1975
Act. The land that previously used to be known as Reserves and Trust
land reserves under the repealed Orders is now known as customary
area.65 There are therefore now two categories of land, viz: customary area
and stateland. The merger of Reserves and Trust land reserves was more
than welcome as the colonial divisions or nomenclature were more
artificial than real. Infact the merger was overdue. As early as 1967,the
Land commission in its report had recommended for two categories of
land, viz: state land and customary land.66

The 1995 Lands Act has continued the practice of vesting land in the
President. The principle of vesting goes as far back as 1928 when the two
categories of land i.e Crown land and Native Reserves were created by the
Northern Rhodesia Order in Council. Crown land was vested in the
Crown while the Native Reserves, including the native trustland reserves
created in 1947, where vested in the Secretary of State. This principle of
vesting land in the President is very controversial especially amongst the
64
See Report of the Land Commission 1967, (Government Printer, Lusaka, 1967) p. 161 Chapter 7, see
recommendation no. 1. The Report is discussed under Chapter 11 of this book.
65
See definition of Customary Area under section 2 of Chapter 184 of the Laws of Zambia.
66
See Report of the Land Commission, Government Printer, Lusaka, 1967, p. 161, see recommendation No. 2.

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 traditional rulers. Some of the traditional rulers have misunderstood the
concept of vesting. The President has no beneficial interest whatsoever.
The land is merely vested in the Presidency “for and on behalf of the people of
Zambia.”

Another controversial aspect of the 1995 Lands Act is in relation to its

relaxation of restrictions on the ability of non-Zambians to acquire land.
Under the repealed 1975 Act, as amended by Act No. 15 of 1985, there
were only four instances under which a non-Zambian could acquire land
or an interest in land. The restrictions have been relaxed under the 1995
Act. There are now eleven instances under which a non-Zambian may
acquire land or an interest in land.67 It is argued that the main motive
behind the enactment of the 1995 Lands Act was to allow for greater
access to land by foreign investors.

One of the conditions under which a non-Zambian may qualify to own

land in Zambia, under section 3 of the Lands Act, is where the
non-Zambian has obtained the President’s consent in writing under his
own hand. This condition, which was first introduced under the 1985
Amendment to the 1975 Act, has been a source of controversy. The
provision granting power to the President to grant land under his own
hand has been abused in the past. This provision is a fertile ground for
corruption. Kaunda has observed that the decision to grant land to
non-Zambians should not be made a prerogative of one man and
suggested the creation of a committee (with laid down specific criteria for
approving applications for land by non-Zambians) to advise the President
in a case where he would want to grant land under his own hand. 68 This is
a welcome suggestion which would reduce the possibilities of corruption.
Another way out is for the complete removal of this provision as it
appears not to serve any useful purpose. It is argued that the
Commissioner of Lands who is the President’s delegate, should grant land
to both Zambians and non- Zambians who qualify under the Act.

The 1995 Lands Act allows for the conversion of customary tenure to
leasehold tenure. There is, however, no mechanism or provision under the
Act to allow for conversion of leasehold tenure to customary tenure. There
is some perception, harbored by others, that the idea of allowing
conversion from customary tenure to leasehold tenure is aimed at getting
rid of customary tenure.
In terms of conversion of customary tenure into leasehold tenure, the Act
requires the consent of the Chief before this can be effected. The Act
67
See Section 3(3) a-k of Chapter 184 of the Laws of Zambia.
68
Kaunda, M, “Ownership of Property Rights in Land in the First Two Republics of Zambia: An Evaluation
of Restriction on Free Alienation and some Lessons for the Future” in Zambia Law Journal, Volume 21-24
p.67.

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 however does not provide a remedy in a situation where consent is
unreasonably withheld by the Chief. Refusal of consent to convert should,
it is submitted, be one of the grounds for appeal to the Lands Tribunal
which would inquire into the reasonableness or otherwise of the decision
to withhold consent.
In relation to Presidential consent, the repealed 1975 Act required
Presidential consent in all dealings or transactions in land. In addition, the
President was conferred with additional powers to determine the
maximum consideration for any transaction. Under the 1995 Lands Act,
consent is only required in cases of sale, transfer or assignment. Unlike
under the repealed 1975 Act, the President has no powers under the 1995
Act to determine the maximum considerations for transactions or dealings
in land. This is an issue which has been left to the parties.

The 1995 Lands Act introduced improvements in the grant of consent by

providing time limits for the grant of consent. A further improvement is
the requirement that in the event that the President refuses to grant
consent he should give reasons for his refusal. 69An aggrieved party may
appeal to the Lands Tribunal for redress. 70

In relation to renewal of leases, section 10 of the Lands Act provides that if

the President does not renew the lease the lessee is entitled to
compensation for improvements. It has been argued that taking into
account that bare or virgin land has value under the 1995 Act
compensation arising out of non renewal of the lease should include the
market value of land and should not restricted to improvements.71

The establishment of a Lands Tribunal under the 1995 Lands Act is a

welcome improvement or innovation. There is now an institution in place
to deal with disputes arising from the exercise of power by the President
under the Lands Act. The Lands Tribunal has a major limitation in relation
to its jurisdiction in that it has no jurisdiction to cancel certificate of Titles.
This has been seen in some of the cases excerpted under the case law
section above.
The Proposed Constitutional provisions relating to land under the
Mung’omba ‘final’ Draft Constitution are very progressive. From the
different concerns raised by the petitioners to the Constitution Review
Commission as well as taking into account the importance of land, it is
only fair that the proposed new Constitution should have explicit
provisions relating to land. The proposed provisions relating to the

69
Section 5(3).
70
Section 5(4).
71
A.C. Mulimbwa, “Land Policy and Economic Development in Zambia , in Zambian Law Journal, Special
Edition 1998, at pages 91-92.

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creation of a Lands Commission will lead to greater accountability and
transparency in the allocation and management of land in Zambia.

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