CHAPTER ONE

AN INTRODUCTION TO LAND LAW IN ZAMBIA

1.0 Introduction - The Nature and Scope of Land Law

Broadly speaking, the law of real property (or land law) is essentially
concerned with ownership of land. Land law may be defined as that
branch of law which deals with and regulates man’s rights and duties to
land and the interest which may be acquired and liabilities which may
accrue to man inter se, in relation to the use of land1. According to Dixon,
the law of real property is obviously concerned with land, rights in or over
land and the processes whereby those rights and interests are created and
transferred.2 Riddal has observed that land law is concerned, first, with
various aspects of ownership of land and, secondly, with interests in land,
and particularly, with the question whether such interests in land are
binding on a subsequent holder of the land.3
From the various definitions given above, it comes out clearly that one
sphere or aspect of land law is concerned with interests in land. These
interests are rights in land held by persons other than the owner. There
are various forms of interests or rights in land that can be held by persons
other than the owner. These interests include leases, mortgages, easements
and profits. The law relating to the various forms of interests in land held
by persons other than the owner is discussed in various chapters in this
book.
With regard to liability, a land owner may be liable in tort if he or she
interferes with the legal rights of others. This aspect is covered under
Section 2.3.1 of chapter two of this book.

The term ‘real property’ is derived from the old remedy for dispossession
of land. Originally, real property was the term applied to any property
that was the subject matter of a real action in the common law courts. This
applied only to freehold interests in land and was not available to actions
relating to leaseholds. The person wrongfully dispossessed of his land
could bring a real action i.e claiming the land; in other words the thing
(res) itself. On the other hand, a person who was wrongfully dispossessed
of his goods or chattels could only bring an action for damages against the
person of the wrong doer. The consequence of a personal action, for
instance, for dispossession, was that the wrongful dispossessor could
either hand back the personal property or pay compensation, whereas
with a real action, if a freeholder had been dispossessed wrongly, then
1
Okon. E “Land Law As An Instrument of Social Change”, ZAMBIA LAW JOURNAL, Volume 17, 1985,
p46.
2
Dixon, M, land law, Cavendish Publishing Limited, London, 1994, P.1.
3
Riddal, J.G, introduction to land law, 4th Ed, Butterworths, London, 1988, p.3.

1
 possession of the property had to be handed back. In consequence, a
distinction was made between real property (or “realty”), which could be
specifically recovered and personal property or “personalty” which could
not.4
It must be pointed out from the outset that even if we have spoken of an
owner of land or ownership of land, “there is, in fact, no such thing as
‘ownership’ of land in an absolute sense or at any rate.” 5 In England, according
to the doctrine of tenure, all land is owned by the crown and a subject can
merely hold land either directly or indirectly of the crown on one or other
various forms of tenures. The doctrine of tenure is discussed under section
1.3.1 of this chapter. In Zambia all land is vested in the President who
holds it in perpetuity for and on behalf of all the people of Zambia. 6 What
a person can therefore ‘own’ both in England and Zambia is merely an
estate or interest in land of a defined duration.
The learned authors of Megarry’s Manual of The law of Real Property
have observed that the objects of learning the Law of Real Property are:-
(a) to acquire a knowledge of the rights and liabilities attached to
interests in land; and
(b) to lay a foundation for the study of conveyancing.7
Conveyancing is concerned with how rights in land may be created and
transferred. Land law principally deals with the rights and liabilities of
land owners. Conveyancing may be defined as a science and art of validly
creating, transferring, and extinguishing rights in property, particularly in
or over land, by written deeds of various kinds. It is accordingly a major
branch of legal work and lawyer’s business. Conveyancing is based on the
knowledge of what rights can exist in or over particular kinds of
property, of what ends can be secured within the existing rules of law,
and of what machinery, such as a vesting order, can appropriately be
employed to achieve particular ends. It includes investigation of title and
preparation of agreements and other instruments which operate as
conveyances.8

1.1 Proprietary Nature of Interests or Rights in Land

Proprietary rights in land are interests in land, whether legal interest or

equitable interests or mere equities that are ancillary or dependent upon
4
See generally Megarry and Wade, the law of real property, 4th ed, Sweet and Maxwell, London, 2000, p.5.
5
Riddal,J.G, supra note 3 at p.5.
6
See Section 3 of the Lands Act, Chapter 184 of the Laws of Zambia.
7
Hayton, D, megarry’s manual of the law of real property, 6th ed, ELBS, London, 1982, p.1.
8
Walker, D,M, the oxford companion to law, Claredon press, Oxford, 1980, p.287.

2
 interests in land.9 As to the nature and effects of land rights or interests
that may subsist in land, Dixon has observed thus:-

…‘land law rights’ , even if created by a contract, are capable of

affecting other people, not simply the parties to the contract. In
other words, ‘land law rights’ are capable of attaching to the land
itself so that any person who comes into ownership or possession of
the land may be entitled to enjoy the rights it gives or be subject to
the obligations it imposes. This is the ‘proprietary’ nature of land
law rights and it is completely different from the merely ‘personal’
obligations which an ordinary contractual relationship establishes.
In fact, one way of describing what land law is about is to say that
it is the study of the creation and operation of proprietary rights,
being rights which become part of the land and are not personal to
the parties that created them.10

Leases, mortgages, easements and profits are examples of proprietary

interests or rights that may exist in land or rather held by one person in
another person’s land. To create a right over the land of another, that right
must (apart from statute), create a burden on the land, i.e an equitable
estate or interest in land.11 Before a right or an interest can be admitted
into the category of property or of a right affecting property, it must be
definable, identifiable by third parties, capable in its nature of assumption
by third parties, and have some degree of permanence or stability.12
There are generally two categories of proprietary rights or interests in
land. These are estates and interests in land.13 The estates that may subsist
in land are discussed under Section 1.3.2 of this chapter. Interests in land
can be taken to mean the rights which one person enjoys in the land
belonging to someone else. The interest is not a right in one’s own land,
but in the ‘estate’ of another person. 14 Proprietary interests may be
transferred or sold to another person and may be binding against a new
owner of the ‘estate’ over which they exist. For example, in Mark Chona v
Evergreen Farms Limited,15 the defendant company was bound by a right
of way which the plaintiff had exercised on the land for more than 20
years before the defendant company acquired the land or farm through
which the right of way was being exercised.

1.2 Sources of Land Law in Zambia

9
Hayton, D, supra, note 7 at p77.
10
Dixon,M, supra, note 2 at p.2.
11
Per Lord UpJohn in National Provincial Bank V Ainsworth [1952] 2 ALL ER 472 at p.488.
12
Ibid, Per Lord Wilberforce at p.494.
13
Dixon,M, supra note 2 at p.4.
14
Ibid, page 5.
15
1996/HP/2727 (unreported) – The case is excerpted under Chapter 6 dealing with Easements and Profits.

3
 The sources of land law in Zambia may be found in statutes enacted by
the Zambian legislature, English common law, principles of equity,
customary law, English statutes applicable to Zambia by virtue of the
English Law [Extent of Application] Act,16 and the British Acts Extension
Act17, judicial precedents and writings of eminent authors.

1.2.1 Statutes Enacted by the Zambian Legislature.

The Constitution of Zambia18 is the supreme law of the land. All laws in
Zambia are subject to the constitution. Any law that contravenes or is
inconsistent with the constitution is null and void.19
In terms of property rights under the constitution, Article 16 provides for
protection against deprivation of property. This article may be resorted to
in a case where there is a challenge to the President’s powers to, for
instance, compulsorily acquire property under the Lands Acquisition
Act20. Article 16 of the constitution is discussed under chapter fourteen of
this book which deals with compulsory acquisition of property in Zambia.
There are a number of statutes enacted by the Zambian legislature which
deal with specific areas or aspects of land law. These statutes include: the
Lands Act21; the Lands and Deeds Registry Act 22; the Land [Perpetual
Succession] Act23; the Agricultural Lands Act24; the Land Survey Act25; the
Lands Acquisition Act26; the Landlord and Tenant [Business Premises]
Act27; the Housing [Statutory and Improvement Areas] Act28; the Water
Act29; the Rent Act30; the Common Leasehold Schemes Act31; and the Town
and Country Planning Act,32 and the Trust Restriction Act. 33 A
number of these statutes are covered or dealt with in this book.

1.2.2 English Common Law

16
Chapter 11 of the Laws of Zambia.
17
Chapter 10 of the Laws of Zambia.
18
Chapter 1 of The Laws of Zambia.
19
See Mumba v The People (1984) ZR 38.
20
Chapter 189 of the Laws of Zambia.
21
Chapter 184 of the Laws of Zambia.
22
Chapter 185 of the Laws of Zambia.
23
Chapter 186 of the Laws of Zambia.
24
Chapter 187 of the Laws of Zambia.
25
Chapter 188 of the Laws of Zambia.
26
Chapter 189 of the Laws of Zambia.
27
Chapter 193 of the Laws of Zambia.
28
Chapter 194 of the Laws of Zambia.
29
Chapter 198 of the Laws of Zambia.
30
Chapter 206 of the Laws of Zambia.
31
Chapter 208 of the Laws of Zambia.
32
Chapter 189 of the Laws of Zambia.
33
Chapter 63 of the Laws of Zambia.

4
 The English Law [Extent of Application] Act34 (whose object, as per its
preamble, is to declare the extent to which the law of England applies to
Zambia), provides for the application of English common law, doctrines of
Equity and certain English statutes.
Section 2 of the Act provides that:-

2. Subject to the provisions of the Constitution of Zambia and to

any other written law-
(a) the common law; and
(b) the doctrines of equity; and
(c) the statutes which were in force in England on the 17th
August, 1911 (being the commencement of the Northern
Rhodesia Order in Council, 1911); and
(d) any statutes of later date than that mentioned in paragraph
(c) in force in England, now applied to the Republic, or
which hereafter shall be applied thereto by any Act or
otherwise; and
(e) the Supreme Court Practice Rules of England in force
until 1999:
Provided that the Civil Court Practice 1999 (The Green
Book) of England or any other civil court practice rules
issued after 1999 in England shall not apply to Zambia
except in matrimonial causes shall be in force in the
Republic.

Hatchard and Ndulo have observed that Chapter 11 of the Laws of

Zambia (which at the time of their writing was Chapter 4 of the Laws of
Zambia) is vague and unsatisfactory.
They observed thus:-

For a statute of such fundamental significance, Chapter 4 is

uncomfortably vague. There is doubt about the significance of the 1911
date, about precisely which pre- 1911 English statutes are applicable,
about what the doctrine of equity means and most of all there is doubt
about whether it embraces the law as developed in the common law
jurisdictions other than England. It is possible to argue that the law
referred to can include only English Common Law. The history of the
enactment supports this view although past history is increasingly of
questionable significance in the circumstances of Zambia. The title of the
Act, as well as the side notes to it which refer to English Law, supports the
view that it refers exclusively to England, although these are not
necessarily determinate of the issue. This construction is also favored by
the preliminary definition in the Interpretation and General provisions
34
Chapter 11 of the Laws of Zambia.

5
 Act (Chapter 2 of the Laws of Zambia), although again there is room for
dispute on this point.35

Zambia, being a former colony of England, is a common law jurisdiction.

This is supported by the history of the country, as well as by the current
statutory guidelines and judicial declarations. 36 There are different
definitions of the common law. Section 3 of the Interpretation and General
Provisions Act37 defines common law as the common Law of England38.
The learned Authors of Megarry’s Manual of the Law of Real Property
have observed that the law of Real Property is part of the common law of
England and further that the phrase “common law” or “at law” is
employed in three senses, viz;
(i) in contrast with local custom;
(ii) in contrast with statute law; and
(iii) in contrast with equity.39

According to the learned authors, “the third is the most usual sense, the
second less, the first comparatively rare; the context will normally make it plain
what is meant.”40
The learned authors have further observed that :-

The common law affecting real property has in course of time been
profoundly affected by equity, and today most questions on real
property law fall for decision in the Chancery Division of the High
Court; yet this is merely a procedural arrangement which must not
be allowed to obscure the common law basis of the law of real
property, though much affected by statute.41

Megarry and Wade have observed, in relation to England, that although

the content of the law of real property is increasingly statutory, it is
however in no sense a statutory code and therefore that it is still essential
to have an understanding of the substratum of common law and equitable
principles upon which the statutory framework has been overlaid,
together with some grasp of the way in which the subject has developed
historically.42 This observation applies with equal force to Zambia. Most

35
Harchard and Ndulo, the law of evidence in zambia, cases and materials, Multimedia Publications,
Lusaka, 1985, p.1.
36
Church, W.L, “The Common Law And Zambia,” in law in zambia, Ndulo, M, ed, East African
Publishing
House Ltd, 1984. p1
37
Chapter 2 of the Laws of Zambia.
38
See Section 3 of Chapter 2 of the Laws of Zambia.
39
Hayton, D, supra note 7 at p.2.
40
Ibid.
41
Ibid at p.3.
42
Megarry and Wade, the law of real property, 4th ed, Sweet and Maxwell, London,2000, p.1.

6
 of the statutory enactments relating to land in Zambia were adopted from
England and/or have their textual roots in the colonial era.

1.2.3 Principles of Equity

Equity may be defined as that body of law or principles that was

developed and applied in the Court of Chancery in England, in order to
mitigate the harshness of the common law. Certain rights could be
enforced in the common law courts and these were known as legal rights.
Some rights were not protected by the common law courts, but later came
to be protected by the Court of Chancery if it deemed it equitable to do so.
These rights were known as equitable rights.43 By the Judicature Act of
1873, the Courts of Law and Equity were fused into one Supreme Court
divided into a High Court and Court of Appeal. In spite of the fusion of
Courts of Law and Equity, law and equity have still remained distinct. 44 It
has been observed that it was in the realms of property law that equity
made its greatest contribution.45 The intervention of equity will be seen in
some of the chapters under part I of this book

1.2.4 Customary Law

The law that existed in Zambia before the advent of colonialism was the
(unwritten) indigenous law of the tribes. This is generally referred to as
customary law. Customary law has no uniform application in Zambia, but
varies from tribe to tribe or locality to locality.46 Customary law may be
resorted to in the settlement of disputes involving members of the tribe.
As regards land law, customary law as a source of law still plays a vital
role in the settlement of land disputes that may arise under land held
under customary tenure. The law that generally governs customary tenure
in Zambia is the customary land law of the area or district where the land
is situate.
The Lands Act47 recognises customary land law in a number of provisions
or sections.48 Customary law is recognized as applicable to the country by
virtue of section 16 of the Subordinate Courts Act,49 provided that such
customary law is not repugnant to justice, equity or good conscience and
43
Legal and Equitable interests in land are covered under Chapter 8 of this book.
44
Hayton, D. supra note 7 at p.61.
45
William, H. land law, 3rd Edition, Sweet and Maxwell, London,1994, p.10.
46
Ndulo, M. “The Changing Nature of Customary Marriage in Zambia,” in Law in Zambia, Ndulo (ed),
East African Publishing House Ltd, 1984, p.143.
47
Chapter 184 of the Laws of Zambia.
48
See for instance section 3(4) which provides that the president shall not alienate land situate in a
customary area without taking into consideration the local customary law on land tenure… See
also section 4(1) of the Act and section 3 of The Lands (Customary Tenure) (Conversion) Regulations –
Statutory Instrument No. 89 of 1996.
49
Chapter 28 of The Laws of Zambia.

7
 is not incompatible, either in terms or by necessary implication, with any
written law in Zambia. The Local Courts Act50 does also recognize the
application of customary law to any matter before it, in so far as such law
is not repugnant to natural justice or morality or incompatible with the
provisions of any written law.51

1.2.5 English Statutes

1.2.5.1 English Statutes Applicable to Zambia by Virtue of the English Law

(Extent of Application) Act.

The vagueness of the English Law (Extent of application) Act has already
been alluded to above under section 1.2.2 of this chapter by way of a
critique by Hatchard and Ndulo. The Act is helpful as to which pre 1911
English statutes are applicable to Zambia. Be that as it may, in terms of
land law in Zambia, the Statute of Frauds 1677, the Conveyancing and
Law of Property Act 1881 – 1911, the Distress for Rent Act 1689, the Law
of Distress Amendment Act, 1888, are some of the well known pre - 1911
English statutes that are applicable to the Republic. The Statute of Frauds
is covered under Chapter Nine of this book.
In The People v Shamwana and others,52 the High Court (Chirwa J, as he
then was) held, inter alia, that the English Law (Extent of application) Act
is an enabling Act in that in the absence of any legislation in Zambia on
any subject, English statutes passed before 17th August 1911 will apply in
Zambia.

1.2.5.2 English Statutes Applicable to Zambia by virtue of the British Acts

Extension Act

The preamble to the British Acts Extension Act 53 provides, that it is:-

An Act to provide for the extension or application of certain

British Acts to Zambia; and to provide for amendments to certain
British Acts in their application to Zambia.

Section 2 of the Act provides that the Acts of the Parliament of the
United Kingdom set forth in the schedule thereto shall be deemed to
be of full force and effect within Zambia.
50
Chapter 29 of The Laws of Zambia.
51
Section 12 of the Local Courts Act, see the case of Kaniki v Jairus (1967) ZR 71.
52
(1982) ZR 122.
53
Chapter 10 of the Laws of Zambia.

8
 The British Acts set forth in the schedule under the Act and which
apply to Zambia are :-

(i) The Conveyancing Act, 1911;

(ii) The Forgery Act, 1913;
(iii) The Industrial and Provident Societies (Amendment) Act,
1913;
(iv) The Larceny Act, 1916;
(v) The Bills of Exchange (Time of Noting) Act, 1917;
(vi) The Married Women (Maintenance) Act, 1920;
(vii) The Gaming Act, 1922;
(viii) The Industrial and Provident Societies (Amendment) Act,
1928;
(ix) The Limitation Act, 1939; and
(x) The Law Reform (Enforcement of Contracts) Act, 1954.

The only statutes from the list mentioned above that may have direct
relevance to land law are, the Conveyancing Act, 1911 and the Limitation
Act of 1939.54 Section 4 of the English Limitation Act provides for the
period of limitation in terms of an action for recovery of land. Section 4(3)
of the English Limitation Act provides that:-

No action shall be brought by any other person to recover any

land after the expiration of twelve years from the date on which the
right of action accrued to him or, if it first accrued to some person
through whom he claims, to that person.

1.2.5.3 Judicial Precedent

Like most other countries formerly tied to England as colonies or

protectorates, Zambia is recognized as a common law Jurisdiction. 55 The
Common law system is based on the doctrine of judicial precedent or Stare
decisis. The doctrine of judicial precedent simply means that the courts do
adhere or follow their past judicial decisions.56 Through the system of
binding precedent, the courts become a source of law in that in their
interpretation of the statutes or laws they create binding judicial
precedents.

54
The Law Reform (Enforcement of Contracts) Act, 1954 amended part of section 4 of the Statute of
Frauds and also repealed section 4 of the Sale of Goods Act, 1893.
55
Church, W.L, “The Common Law and Zambia”, law in Zambia, Ndulo,M, (ed), East African Publishing
House Ltd, 1984, at p.1.
56
Ibid.

9
 Under the common law system, the lower courts are bound by the
decisions of higher courts. In Kasote v The People,57 the Supreme Court
held, inter alia, that:-

(i) the principle of stare decisis is essential to a hierarchical system of

courts. Such a system can only work if, when there are two apparently
conflicting judgments of the Supreme Court, all lower courts are bound by
the latest decision.

(ii) the Supreme Court being the final Court in Zambia adopts the practice
of the House of Lords in England concerning previous decisions of its own
and will decide first, whether in its view the previous case was wrongly
decided and, secondly, if so, whether there is a sufficiently strong reason to
decline to follow it.

1.2.5.4 Text Book Writers

Text books may also be recognized as sources of land law. For example,
Megarry’s Manual of the Law of Real Property has been and is widely
cited and relied on by both the legal practitioners and the courts not only
in England but also in Zambia.

1.3 The Two Basic Doctrines of English Land Law

There are two basic doctrines of English Land Law. These are the
doctrines of tenure and estate.58 These two basic doctrines of English land
law are crucial to the understanding of our land law in Zambia. This is
because our land law concepts especially under statutory tenure and
indeed a number of statutes are mainly derived from or have their textual
root in the English (land) law and/or statutes. The colonial administration
brought in English law in the then Northern Rhodesia territory following
the advent of colonialism.

1.3.1 The Doctrine of Tenure

The word tenure, from the latin tenere (to hold) implies that land is ‘held’
under certain conditions. From the time of the Norman Conquest in 1066,
English land law adopted the continental system of feudalism i.e
hierarchy dominated by a sovereign or chief and based on mutual
promises of protection and military service.59
William the conqueror (1066 – 87), regarded the whole of England as his
by virtue of conquest and granted land not by out and out transfer but to
57
(1977) ZR 75.
58
See generally Hayton, D. megarry’s manual of the law of real property, 6th ed, ELBS, London. pp 23-27.
59
William, H. land law, 3rd Edition, Sweet and Maxwell, London, 1994 p.5.

10
 be held of him as overlord. Persons holding land of the crown might then
grant land to another (sub infeudate) to hold of him in return for services.
The feudal pyramid that was constructed was based upon the land tenure
system; the tenure of the land identifying the conditions on which land
was held. Tenure was the main bond holding society together, the lord
protected those who held land of him. 60
From the time of the Norman conquest, a theory of the common law
developed that all land in England was held of the crown and that
subjects may hold land directly or indirectly of the crown. According to
the doctrine of tenure, all land in England is held of the crown, either
directly or indirectly on one or other of the various tenures. 61 The excerpt
below by Okon62 does ‘summarise’ the development of English land law
and its doctrine of tenure from the time of the Norman conquest in 1066
up to the time of the major land law reforms in 192563.

The outstanding feature of the English Land Law, and one which explains
many of it’s peculiarities, is that at least from the time of the Norman
conquest, it fell into line with the continental systems and became and
remained feudalistic. Maitland has tried to paint the picture of what
feudalism represents to a lawyer. It is: a state of society in which the main
social bond is the relation between Lord and man, a relation implying on
the Lords part protection and defense; on the man’s part
protection ,service and reverence, the service including service in arms.
This personal service or relation is insuperably involved in a proprietory
relation, the tenure of land – the man holds of the lord , the man’s service
is a burden on the land, the Lord has an important right in the land.
“The system, to say the least, was a negation of liberty. It implied subordi-
nation. It meant that one man was inferior to another. Stubbs in his
Continental History described the system as:
A graduated system of jurisdiction based on land tenure, in which every
lord judged, taxed, and commanded the class next below him ... in which
private coinage, private persons took the place of the imperial institutions
of government
One of the effects of feudalism in Europe and in England in particular was
that from a legal point of view; land became the exclusive bond of union
between men. Individual and communal land ownership was destroyed.
The ownership of the whole of the land in any given district was vested in
the overlords, and the persons who had formerly owned it in their own
right now held it of the overlord. In return for the land which they held,
they were bound to render services, chiefly of a military nature, to the
60
Ibid.
61
Hayton,D, megarry’s manual of the law of real property, 6th ed, ELBS p.24.
62
Okon, E. “Land Law as an Instrument of Social Change,” in ZAMBIA LAW JOURNAL, Volume 15,
1985 at p 46-51.
63
Ibid.

11
 overlords, while the latter in their turn were bound to protect the tenants.
Consequently, there arose a process of "sub-infeudation" which brought
about a lot of confusion and complications in land tenure such that it was
not easy to know who actually owned the land at any particular time
because of the long hierarchy of lords and overlords, tenants and
sub-tenants it created.
Quia Emptores of 1290
However, changes were under way. In the year 1290 the statute Quia
Emptores was enacted, which abolished the practice of sub-infeudation.
The importance of the statute was that it altered land law in two
particular respects. First, it settled the controversy and allowed every
freeman the liberty of alienating his land without the consent of the
overlord. Secondly, it encouraged substitution of the tenant, i.e. it enacted
that every alienee should hold land of the same lord of whom the alienor
previously held. The statute Quia Emptores was indeed landmark
legislation in the history of land law in England. Its chief virtue was that
it led to the gradual disappearance of the numerous petty landlords that
had arisen.
Tenure Abolition Act of 1660
The most vexing aspects of the medieval feudal system of land holding
were the forms of tenure and the incidents of such tenures. Tenure
depended for its form on the particular services owed by the tenant.
Tenures existed in the following modes at the time of Edward 1
(a) Free tenures
These consisted of Knight Service, sedeanties, spiritual tenure, free socage.
These services were considered to be rendered freely.
(b) Customary tenure:
Examples of this were gavel kind and borough English.
The important form of free tenure under feudalism was the knight service.
It was based on military service in return for the grant of land. The
tenants in-chief were required, in return for land, to serve the sovereign.
This service included the provision of armed horsemen. In the mid-twelfth
century however, money payment was accepted by the King from the
tenant-in-chief instead of service in the form of production of the fixed
quota of Knights.
Most incidents-of knight service were extremely cumbersome and
burdensome, and their exaction was responsible in large measure for the
social unrest which culminated in court the granting of magna carta in
1215. These incidents included homage, suit of court, aids, relief,
wardship, marriage, escheat and forfeiture.
With the growth of money payments and the general burdensome nature
of these incidents, knights service and its incidents were abolished under
the Tenure Abolition Act of 1660. However, a call for reform in English
land law did come before Parliament both in 1922 and in 1925. The result

12
 of six hundred years of development from the feudal origin was that land
law contained so many antiquated rules and technicalities that additional
and unnecessary impediments had arisen, to hinder the facile transfer of
land. Land law as it existed in the 1920's might justly be described as an
archaic, feudalistic system which, though originally evolved to satisfy the
social needs of the society, had by considerable ingenuity been twisted and
distorted into a shape more or less suitable to a commercial society
dominated by money. The movement of progressive societies, we must
remember, has been from land to money. Hence sweeping reforms in land
law were effected. For instance, many anachronistic rules and doctrines in
land law were cleared away, tenures were reduced in number, the rules
governing real and personal property were closely assimilated, and above
all, conveyencing was simplified in particular by the reduction in number
of estates.
Laws of Property Act 1925
One of the most important social changes brought about by land law even
in recent times has been the ease and rapidity with which land can and
does change hands in England today. This important swing from
non-alienation to a Laisses-faire policy was ushered in by the Law of
Property Act 1925 which completely altered the lifestyle and social outlook
of the Britons. Thereafter, people found it easy to dispose of their landed
property and move from one part of the country to another or from one
part of a city to another, thereby making way for the mobility of people and
labour at the same time. This mobility of' labour paved the way for the rise
in the number of professionals, artisans, trademen and others in the
society. Another significant change brought about through the
instrumentality of land law was the breakdown in the old rigid concept of
social stratification. English society was rigidly stratified along certain
lines. There were, for example, the commoners, the middle class, the upper
middle class and the upper class. It was difficult to climb from one social
group to a higher one. But with the easy alienability of land, the status
symbol of wealth in the society, people acquired as much landed property
as they wanted and thus could move up the social ladder. People of low
birth easily became peers, lords or barons because of their wealth.

1.3.2 The Doctrine of The Estates

The doctrine of tenures dealt with the conditions on which land was held.
The doctrine of estate is concerned with the length of time for which land
is held. The doctrine of estates provides that a subject cannot own land,
but can merely own an estate or interest in it, authorising him to hold it

13
 for some period of time.64 Tenure answers the question “how is land held?”
the estate the question “for how long?”65
Because all land in England is held of the crown, English law has
developed the concept of the estate which has its emphasis on the right to
possession.66 An estate is an interest in land of defined duration. It is an
abstract entity which represents the extent of a person’s rights to
possession.67
There are two principal categories of estates, namely, freehold estates and
estates less than freehold or leasehold. A freehold estate is one whose
duration though fixed is uncertain whereas an estate less than freehold or
leasehold is one for a period whose duration is fixed or is capable of being
fixed.68

1.3.2.1 Freehold Estates

There were three estates of freehold at common law, viz; fee simple, fee
tail and life estate. All the three estates had one thread in common,
namely, that the duration of the estate was fixed though uncertain. In
Zambia, English land law and its concepts were ‘imported’ into the
Northern Rhodesia territory by the colonial administration. While African
customary law regulated land under customary tenure, the land in crown
land (which was set aside for white settlements) was regulated by English
land law. The interests created in crown land were those known to
English law. These are estates and tenures. Estates and tenures could
either be freehold or leasehold. Freehold estate (together with leasehold
estate) continued to exist in Zambia up to 1975, when by virtue of the
Land (Conversion of Titles) Act,69 all freehold estates were converted to a
renewable leasehold estate of 100 years effective, 1st July 1975.
The freehold estates are briefly discussed below.

i Fee Simple Estate

This is the largest estate in terms of duration and is as near to ‘absolute

ownership’ as it is possible to achieve.70 The word ‘fee’ denotes
inheritability, ‘simple’ indicates that the estate is inheritable by general
heirs, i.e. ascendants, descendants or collateral.71 The fee simple is
virtually everlasting in that it continues as long as the person entitled for
64
Ibid.
65
Hayton, D, supra note 58, p. 24.
66
William, H, land law, 3rd Ed, Sweet and Maxwell, London,1994, p 6.
67
Ibid.
68
Ibid at p 7.
69
Since repealed by the Lands Act of 1995 – The Land Conversion of Titles Act is covered in Chapter 12
of this book.
70
William, H, supra note 59 at p.7.
71
Ibid.

14
 the time being has heirs at his death. The owner of a fee simple estate had,
at common law, unfettered power of alienation inter vivos or by will.

ii Fee Tail

A fee tail estate is an inheritable estate which lasts as long as the original
grantee or any of his descendants live. 72 The terms ‘fee tail,’ ‘estate tail,’
‘entail’ or ‘entailed interest’, are often used to describe the same estate. A
restriction on the line of descendants to the male or female species only
could be created by a ‘fee tail female’ or a ‘fee tail male’.
The fee tail estate existed in Zambia up to 1944, when it was abolished by
virtue of an amendment to section 31 of the Lands and Deeds Ordinance
(which at independence became an Act). Section 31 (2) of the Lands and
Deeds Registry Act73 now provides that:-

From the 1st May, 1944, an estate tail shall cease to exist
in Zambia for all purposes, and all land held on an estate
tail shall become land held in fee simple by the tenant
in tail, and all words in any document after such date
purporting to create an estate tail shall be deemed to create
an estate in fee simple.

iii Life Estate

This estate is self explanatory. An estate for life is one limited in its
inception to the life of the tenant. It was the grant of an estate to the
grantee for his life. The estate subsisted as long as the grantee lived. A life
estate is not an estate of inheritance. On the death of the tenant the estate
determined and reverted to the overlord.
An estate pur autre vie (for the life of another) was a species of life estate
where the right to the estate exists for the duration of someone else’s life.
If the duration of the estate was for more lives than one it was often
termed ‘a lease for lives.’ A grant of a portion of land ‘to X as long as Y
lives’ would create such an estate which terminates on Y’s death.
Section 31(1) of the Lands and Deeds Registry Act provides for tenants for
life and tenants in tail. The section provides that :-

(1) A grant of land for a life or lives shall, for the purposes of Parts III to
VII, be deemed to be a leasehold held from the person entitled to the
reversion or remainder immediately expectant upon the termination or
expiration of the life estate created by such grant.

72
Ibid.
73
Chapter 185 of the Laws of Zambia.

15
1.4 Estates Less Than Freehold (Leasehold or Term of Years)

The leasehold estate or lease, as we know it today, was originally not

recognised as an interest in land. The three estates of freehold, discussed
above, were the only estates recognised and protected at common law. 74
Leaseholds were brought into the estate system in the 16 th century by
which time they had been recognised as legal estates and were fully
protected by the Common law courts.75 Estates less than freehold now
comprise various forms of leasehold including76:-

(a) A lease for a fixed term of certain duration e.g. a lease for 3 months,
100 years or 999 years.
(b) A lease the duration of which is capable of being rendered certain e.g. a
grant of tenancy to X from year to year.
(c) A lease for an uncertain period of uncertain duration – a tenancy at
will – a tenancy at will is a tenancy which may continue indefinitely
or may be determined by either party at any time.77

The excerpt below from Maudsley and Burns’ “Land Law - Cases and
Materials,” aptly summarises the nature of the two forms of estates
discussed above.

Freehold estates, i.e. the estates held by freehold tenure, are

those which were in use in the feudal system. In medieval
times that system was the basis of the social, military and
economic structure of the state: and the holding of freehold
land was itself the basis of social position, wealth and
power. It was essential for the security of the state and of
the social structure that the ownership of freehold estates
should be protected; and it is not surprising that the land
law was the first of the fields of private law be undertaken
by the King's Court'.
The freehold estates are the fee simple, fee tail, life estate
and estate pur autre vie. They are freehold because they
were recognised by the feudal order, because persons
holding such estates in possession were recognized as
standing upon a rung in the feudal ladder, and because the
remedies available in the King's Court were available to the
owner of such an estate and gave a claimant specific
recovery. Such estates are “real property” or "realty", and
are contrasted with the term of years, a leasehold estate
74
Hayton, D, supra note 7 p.30.
75
Ibid.
76
Ibid at pp. 30 and 31.
77
Ibid.

16
 whose owners were never on the feudal ladder; they could
not protect themselves by the same actions as the freeholder;
their estate as personal property "personalty", passed on
intestacy with chattels. A convenient way of distinguishing
between freeholds and leaseholds is to note that freeholds
are always of indefinite duration, leaseholds for a fixed
period or such as can be made certain. But this is just a
label; it does not help to understand the basic gulf between
the two, which was so obvious to the medieval lawyer.78

1.5 Estates in Possession, Remainder and Reversion – successive interests in

Land.

One consequence of the concept of the ‘estate’ was that the law allowed
various smaller and simultaneous estates to be carved out of the fee
simple estate. Successive ownership of land occurs when one person has
an estate in the land for life and another, or others, have rights which ‘fall
into’ possession after the life interest has ended79.

At common law it was once quite common for property to be left to one
person for his life, then to another, and so on as where longacre is left to
John for life, with remainder to Peter for life, remainder to Andrew in fee
simple. In such a case, John has a life interest in possession, Peter has a life
interest in remainder, and Andrew has fee simple in remainder (and will
become the absolute owner on the death of Peter and John.)
An estate in possession is one where a present right to immediate
enjoyment is given, i.e. where there is no preceeding estate to postpone
enjoyment. In the above example, the estate of John is in possession.
Where land would revert back to the original grantor, then the grantor
had an estate in reversion so that if for instance, longacre was conveyed by
Simon “ to Stephen for life,” then the estate of Simon is a reversion. In the
grant to John for life, Peter for life, Andrew in fee simple, the estates of
Peter and Andrew are estates in remainder, i.e they don’t have a present
right to actual enjoyment, their right to possession being postponed to the
future. The estate of John being in possession is known as a particular
estate.

Section 60 of the Lands and Deeds Registry Act provides for the creation
of various estates. The section provides that:

(1) The Registered Proprietor of land in respect of which a

Provisional Certificate or a Certificate of Title has been issued may

78
Maudsley and Burn’s, land law: cases and materials, 5th Ed, Butterworths, 1986 London, p.120.
79
Dixon,M, supra note 2 at p. 99.

17
 (a) make a transfer to himself jointly with any other person or
persons; and
(b) create or execute any powers of appointment, or limit any estates,
whether by remainder or in reversion, and whether contingent or
otherwise, and for that purpose may modify or alter any form of
transfer hereby prescribed.

(2) In case of the limitation of successive interests as aforesaid, the Registrar

shall cancel the Provisional Certificate or Certificate of Title evidencing
the title of the transferor, and shall issue a Certificate in the name of the
person ultimately entitled to the estate in remainder or reversion directly
under the President (whether freehold or leashold) for such estate as he is
entitled to, and the persons immediately and subsequently successively
entitled in possession shall be registered as leaseholders according to the
limitations in their favour.

The above section has to be read in the light of the Trust Restriction Act 80
of 1970, which is discussed below. In a nutshell, the said Act has restricted
the creation of settlements and future interests envisaged under section 60
(i) b excerpted above.

1.5.1 Future Interests and the Trust Restriction Act.81

In the above example the estates of Peter and Andrew are future interests.
Peter and Andrew are ready to take possession (of course at different
times) but cannot do so because of the existence of an earlier interest. A
contigent interest or gift is a future interest which gives no right at all
unless and until some future event occurs and the specified conditions
have been satisfied.82 If longacre was given to “John for life, Peter for life,
remainder to Andrew in fee simple if he became a lawyer” then the nature
of gifts are;
(a) John has an interest vested in possession i.e he has a present
right to present enjoyment. This is not a future interest and was
not affected by the perpetuity rule at common law.
(b) Peter has an interest vested interest- i.e where a gift gave a
present right to future enjoyment it was vested for the purposes
of perpetuity.83 In this case peter is ready to take possession but
is merely postponed by the existence of an earlier interest. The
importance of the difference between vested and contingent
80
This Act was enacted much later than the Lands and Deeds Registry Act which was promulgated as an
Ordinance in 1914.
81
Chapter 63 of the Laws of Zambia.
82
William, H, supra note 59 at p.101.
83
Ibid at p.100.

18
 gifts is that if it was vested then the gift automatically took
effect, whereas if it is contingent then its operation was
uncertain and at common law it could be declared void for
perpetuity.84
The origin of the perpetuity rule could be traced to the 13th
century where the principle was developed that property
should not be rendered inalienable.85 The rule was devised to
prevent land being tied up for excessive period in settlements i.e
in succession or under successive ownership such as under the
examples given above. All types of future interests were
therefore made subject to important rules limiting the period for
which a settlor (one who makes a settlement) could exercise
control over the property even in his death.
The development of the perpetuity rule was initially common
law based culminating in the House of Lords decision in Cadell
v Palmer.86 The court felt that there had to be limits on a
landowner’s powers of disposition otherwise, a tyrannical
testator could tie up the future enjoyment of his land and
destroy the powers of disposition. There was also the
consideration that if land was tied up then there would be no
one capable of ensuring that the land was used to the fullest
advantage, and the country’s economy would suffer
accordingly.87
The perpetuity rule may simply be stated thus:-

Any future interest in any property is void from the outset if it may
possibly vest after the perpetuity period has expired. The perpetuity
period is 21 years after the death of a life or survivor of a number of
lives, plus any period of gestation.88

The Trust Restriction Act, which came into force on 24 th December 1970,
provides in its preamble that it is:-

“An Act to restrict the creation of settlements, trusts and future

interests.”

In presenting the Trust Restriction Bill in the National

Assembly the then Attorney General, the late Mr. Fitzpatrick

84
Ibid.
85
Ibid at p.101.
86
[1833] I Cl & Fin 372, 10 Bling 140.
87
Hayton,D, supra note 61 at p.186.
88
William, H, supra note 59 at p.102- For a detailed exposition of the perpetuity rule please see Chapter 7
of Megary and Wade, supra note 42 and chapter 12 of Riddal, J.G supra note 4 .

19
 Chuula, had this to say by way of trying to justify the
enactment of the Act:

Mr Speaker, Sir, the primary purpose of this Bill is to prevent

property, whether real or personal, being tied up for long periods,
which can run into many generations. The policy of the
government is to ensure the maximum utilisation of the wealth of
the country and thereby stimulate economic growth. To achieve
this end it is necessary to restrict the creation of private trusts,
settlements and future interests. These devices have throughout
history been used to limit the power of alienation of property, with
the result that the property has been tied up in perpetuity.

This problem has over the centuries given rise in England to

various legislative devices and various judge-made rules, such as
the rule against perpetuities. These are still being developed to
meet this problem. We do not wish to see our society a class of
persons who make no material contribution to the national output,
but live entirely on the income of settled before dealing in detail
with the provisions of the Bill, I wish to stress one point very
strongly. This bill will not restrict the right or ability of any
individual to make a will giving his property to his wife or his
children, or indeed to any persons to whom he may wish to give it.
This bill only prevents a person tying up his property by way of
trust, a settlement or the creation of a future interest, so that the
beneficiaries receive only the income, but cannot touch the
capital.89

Section 2 of the Act defines property to include, “real and personal property
and any estate or interest therein.”

Section 2 further defines a settlement to mean:-

“any disposition whereunder any property stands for the time being
limited to or in trust for any persons by way of succession, and "settle"
and other cognate expressions shall be construed accordingly;”

A minor is defined under the section to mean:-

“a person in being under the age of twenty-one years;”

Section 3 of the Trust Restriction Act provides for restrictions on creation

of settlements, trusts and future interests. The section provides that :-
89
See Hansard no. 24 (B), Wednesday, 9th December 1970.

20
 Save as hereinafter provided, after the commencement of this Act a
person shall not-
(a) settle any property; or
(b) limit any property in trust for another; or
(c) make any disposition whereunder property vests in
possession at a future date.

Section 4 provides for the exceptions to the general rule laid down under
section 3. The section provides that:-

4. Nothing in this Act shall apply to-

(a) a disposition whereunder property is limited to, or in trust
for, a minor on his attaining a specified age not exceeding
twenty-one years;
(b) a disposition whereunder property is limited to, or in trust
for, a widow, either for her life or for some other period,
with a gift over in favour of children, if such disposition
contains a provision that on the re-marriage of the widow
the property shall forthwith vest beneficially in such
children.
For the purposes of this paragraph, "child" means-
(i) a child of the marriage; or
(ii) a child of either of the parties to the marriage; or
(iii) an adopted child, a step-child or an illegitimate child of the
parties to the marriage or either of them;
(c) a disposition in favour of a charity;
(d) a trust in favour of or for the benefit of a person of unsound
mind or a minor;
(e) a trust for the purpose of the administration of the estate of
a deceased person, to the extent that any will of such
deceased person does not offend against the provisions of
this Act;
(f) a trust for the purpose of the administration of the property
of a person adjudged bankrupt or a body corporate in
liquidation or a person who has entered into a deed of
arrangement for the benefit of his creditors;
(g) a trust for the purpose of the administration of enemy property;
(h) a trust for the purpose of the operation of a pension,
superannuation or similar scheme;
(i) a trust terminable at the will of the beneficiary.

Section 5 provides for the effects of a disposition in contravention of the

Act. The section provides that:-

21
 Subject to the provisions of section four, and notwithstanding
anything to the contrary contained in any other law, after the
commencement of this Act-
(a) a settlement shall have effect as a disposition in fee simple
or absolutely, as the case may be, to the tenant for life;

(b) a trust shall have effect as a disposition in fee simple or

absolutely, as the case may be, to the beneficiary;

(c) a disposition whereunder property vests in possession at a

future date shall be ineffective to create or vest any such
interest.
Section 6 deals with those settlements that were in existence at the
time of the commencement of the Act i.e. 24 th December, 1970. The
section provides that:-

(1) Where at the commencement of this Act property is held under

an existing settlement or trust, or a disposition is in existence
whereunder property vests in possession at a future date, such
settlement, trust or disposition shall be deemed to have been made
after the commencement of this Act and accordingly the provisions
of section five shall apply:
Provided that in any such case the persons, if any, whose future
interests, whether vested or contingent, have been extinguished by
virtue of this section shall be entitled to compensation as
hereinafter provided.
(2) Any person claiming compensation under subsection (1) may,
in default of agreement between the interested parties, make
application to the Court:
Provided that any such application shall be made within one year
after the commencement of this Act.
(3) Any compensation agreed upon or ordered by the Court to be
paid shall be by way of periodic payments or a lump sum payment
or a combination of such payments, and shall be made by the
person in whom the property has been vested by virtue of the
provisions of section five.
(4) In determining the amount of compensation, the Court shall
take into account all relevant circumstances including, but
without derogating from the generality of the foregoing-

(a) the annual value of the interest extinguished;

(b) the probability of any contingency;

22
 (c) the life expectancy of any interested person;
(d) the cost of purchasing an annuity for any relevant period.

From the provisions of section 3 it is clear that there is, inter alia, a
general restriction on creation of future interests.
The exception under section 4(b) of the Trust Restriction Act is
usually a common provision under most men’s wills. The provision
is clearly discriminatory in favor of men in that it allows a man, by
implication, to remarry without losing the property left by his
deceased wife under the will for his benefit when the opposite is
not the case. Section 9 of the Intestate Succession Act, 90 is not
discriminatory in case of devolution of property on remarriage of
the surviving spouse. Section 9 of the Intestate Succession Act
creates an element of a life interest as well as a future interest .
The section provides that:-

(1) Notwithstanding section five where the estate

includes a house the surviving spouse or child or
both, shall be entitled to that house:
Provided that-
(a) where there is more than one surviving spouse or child
or both they shall hold the house as tenants in
common; and
(b) the surviving spouse shall have a life interest in that
house which shall determine upon that spouse's
remarriage.

In drafting wills, the provisions of the Trust Restriction Act have to be

strictly observed or adhered to especially when attempting to create
contigent and/or future interests. Any provision under a will granting a
contigent or future interest in a property outside the exceptions provided
for under the Act would be void to the extent of the contravention or
inconsistency.

1.6 Is There an Equivalent of The Doctrine of Tenure Under Customary

Tenure in Zambia?

It has been observed under section 1.3.1 above, dealing with the doctrine
of tenures, that in return for the grant of land by the crown, the subject
had to perform certain services. In other words, the performance of the
services to the crown or overlords was a condition upon which the land
was held. A question that may be posed here is whether under African
90
Chapter 59 of the Laws of Zambia.

23
 customary tenure in Zambia, there is any equivalent or similarity to the
position, or situation that obtained during the medieval period in
England.
It is now generally agreed that chiefs under customary tenure have no
allodial ownership of land similar to the crown in England. 91 Though
sometimes loosely referred to as owners of land, chiefs in Zambia merely
exercise control functions over land. A question that may be posed here is
whether or not subjects are expected to perform or render certain services
to their chiefs as a condition for the grant and continued holding of the
land.
According to a research carried out on behalf of the Catholic Commission
for Justice and Peace [C.C.J.P],92 it was found that in some parts of the
Copperbelt and Luapula provinces of Zambia the subjects had to provide
or perform certain services to their chiefs, including payment of money, as
a condition for the grant and continued ownership and holding of the
land. For instance, under senior chief Mushili’s area in Ndola rural the
subjects bitterly complained of the practice of paying farm produce
and/or money every year (usually after harvest) to their senior chief.
‘When the chief is on tour we are required to pay K15,000 and a tin of
maize, is it in order? One person in Kanonge area under Chief Mushili
commented, ‘When you don’t take something to the Chief you are chased
from the land,” another man pointed out.93 Another person at Mishikishi
lamented, ‘I did not pay loyalties in 2001, because I did not have food or
money and I told the Sulutani [village headman], but after sometime he
came to insult me and told me to move away from the house and land
where I had a farm……right now I don’t have a place to stay or farm. 94’
After some probing questions from the author, it transpired that the
gentleman was a ‘settler’ having originated from Eastern Province of
Zambia and found the practice of paying ‘royalties’ to the senior Chief
unpalatable and unacceptable to him.
The C.C.J.P report generally observes in relation to the places visited in
chief Mushili’s area that people, especially the ‘settlers’ or ‘non locals’
lived in constant fear of losing their land and most of them preferred to
have title deeds through converting their interest in customary land into
leasehold. In chiefs Mabumba and Chimense’s areas of Mansa district in
the Luapula Province, the practice of paying some form of royalties was
similar as that observed in senior chief Mushili’s area.

In chief Mabumba’s area one person lamented:-

91
See generally Chapter 20 of this book dealing with the African Concept of land tenure.
92
Catholic Commission For Justice and Peace, "The Impact of the Lands Act 1995 on the livelihoods of the
poor and peasants in Zambia,” February, 2003. The author was part of the core research team.
93
Ibid.
94
Ibid.

24
 There is corruption in the allocation of land here, because for you
to be allocated land by the chief, you need to pay K20,000-
K25,000, a bag of mealie meal, and two chickens. If you don’t pay
those things, then you are chased away from the land. We want the
system to change because us with title deeds pay double. 95

The case exceepted below demonstrates the role of traditional authority in

the allocation of land in the Western Province of Zambia. Its interesting
aspect, in relation to the doctrine of tenure discussed above, is the making
of obeisance (Kushowelela) to the Litunga, as some form of condition for
the grant of land. The case also illustrates customary law as a source of
law.

95
ibid p31.

25
1.7 CASE LAW

Mukelebai v Widmaier Supreme Court Appeal No. 116 of 1995

[Unreported]

[The facts of the case appear from the Judgment of the Supreme Court
delivered by
Ngulube, CJ, as he then was]

For convenience, we will refer to the parties by their designations at the trial; the appellant
as the plaintiff and the respondent as the defendant. The plaintiff brought proceedings
against the defendant in which he asked the court to nullify the grant of a piece of land in
Mongu to the defendant by the Lozi Royal Establishment and to order cancellation of a
certificate of title issued to the defendant in respect of the same land by the Commissioner
of Lands. The plaintiff claimed that the piece of land granted to the defendant was in fact
an integral part of a ten acre plot of land which had already been granted to him in 1975.
He had gone through all the necessary procedures under Lozi custom, culminating in
making obeisance (Ku Showelela) to the Litunga. He said he had applied for a Certificate
of title to part only of this piece of land to facilitate borrowing, leaving the rest or the plot
unsurveyed and available should a lender take away the piece with the Certificate of title.
The plaintiff further claimed that it was contrary to the law applicable at the time, that is, the
Zambia (State Lands and Reserves) orders 1928 - 1964 to grant land in a Reserve to a
non-native inhabitant. Another point raised (which it transpired was infact common ground)
was that under Lozi customary law, land granted to a subject by one Litunga cannot be
taken away by a subsequent Litunga.
The defendant's case was that being desirous of procuring land on which to construct
workers' houses for his carpentry and joinery business, he too went through all the
requisite procedures starting with an approach to the area chief and culminating with a
certificate of title with the blessings and consent of all the elevant traditional and State
authorities. At an early stage, the traditional authorities convened a meeting at the affected
site with all the neighbours: the plaintiff attended and raised objection, claiming the piece
of land as his and he was contradicted by two Indunas sent from the Royal Establishment
who happened to have been present at the time when the plaintiffs’ own piece of land was
demarcated.
The plaintiff sued and lost in the traditional courts. He then launched these proceedings
and lost in the High Court. The learned trial Judge determined that the issues to be
resolved were whether the land given to the plaintiff by the Litunga in 1975 included the
disputed piece now occupied by the defendant; whether the present Litunga had not
wrongfully dispossessed the plaintiff, contrary to Lozi customary land law; whether the
plaintiff’s land was clearly delineated; whether the plaintiff had adduced sufficient evidence
to establish that the land now held by the defendant was part of the land given to him by
the Litunga in 1975; and whether it was contrary to law to grant land in a reserve to the
defendant, a German national. The learned trial Judge found against the plaintiff who has
appealed to this Court.
We heard elaborate arguments and submissions. We also received detailed written heads
of argument. In the view that we take, the point was not what the Lozi Customary law of

26
land acquisition is and about which there was no dispute as such. The true point was what
land had been given to the plaintiff and whether this included in extent the piece of land
subsequently given to the defendant. The learned trial Judge clearly recognized this. In
analysing the evidence, the Judge observed that both the Litunga and the area Chief
Libumbu who were involved in the grant to the plaintiff were deceased but that one at least
of the lndunas sent to demarcate the plaintiff's land was still alive and had attended the
meeting to demarcate the defendant's plot. This was Induna Inguu who contradicted the
plaintiff s claim at the meeting. The defendant had deposed in his evidence that there were
in fact two Indunas at the meeting who had also participated in the earlier exercise of
demarcating the plaintiff’s land. The Court observed that apart from his own word, there
was no one else and nothing else to support the plaintiff’s claim to the defendant's land.
The Judge concluded that the plaintiff had failed to satisfy the Court whether verbally or by
documents that the land given to him in 1975 by the late Litunga included Lot 6020/m, now
occupied by the defendant.
In the grounds of appeal and in the submissions and arguments, many issues were raised.
For example, the plaintiff criticised the Judge for expecting customary land to have survey
diagrams and beacons. But in fact, the learned trial Judge was commenting on the
plaintiffs own evidence that a Mr Ilukui of the Mongu Rural Council had surveyed his land.
As Mr Nchito submitted, the plaintiff cannot complain about a matter he himself had talked
about. Another complaint was that the Judge should not have required the plaintiff to call
corroborative evidence. The learned trial Judge in fact made observations well within his
rights when he pointed out, in effect, that the plaintiff’s claim rested solely on his own say
so and that neither the documents he had produced nor the witness he called assisted his
claim regarding the extent of his own land. There is nothing in the judgment to suggest that
the learned trial Judge had categorised the evidence of the plaintiff as one would expect in
a criminal trial - as falling within the classes which require corroboration whether as a
matter of law or as a matter of practice. Another ground was that the current area Chief
Libumbu, gave hearsay evidence on the extent of the land. The learned trial Judge in fact
had before him the evidence of the defendant that a meeting was called which the plaintiff
attended and where eye - witnesses to the first demarcation were present to refute the
plaintiffs claim. All these arguments were, in our considered view, red herrings. The
problem in fact reduced itself to sufficiency of proof, or perhaps more accurately
insufficiency of proof. In other words, the plaintiff failed to prove his case on a balance. In
truth, we have no pretext which we can use for reversing the learned trial Judge's
determination on the facts and evidence before him.
That leaves the legal objection based on the Orders in Council. Once the defendant is
adjudged - as happened - not to be occupying the plaintiffs land, the plaintiff hardly has
locus standi to complain about land that is not his. The Orders in Council while generally
restricting occupation by non-native inhabitants provided for exceptions in special cases
and with the consent and approval of all the relevant traditional and State authorities. The
learned trial Judge was satisfied that the defendant had the requisite permissions. The real
dispute concerned the grant and ownership of the land and whether the defendant's land
was not part of the plaintiffs land. To further discuss the technical and legal objection
based on the Orders in Council in Vacuo is decidedly otiose.
The appeal fails

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1.8 Summary of Chapter one.

Land law deals with rights and liabilities of land owners. It is concerned
with land, rights in or over land and the processes whereby those rights
and interests are created and transferred. These interests are rights in land
held by persons other than the owner. Examples of these proprietary
interests in land include leases, mortgages, easements and profits. These
proprietary interests in land are capable of binding or affecting other
people not simply the parties to the contract. In other words, land law
rights are capable of attaching to the land itself so that any person who
comes into ownership or possession of the land may be entitled to enjoy
the rights it gives or be subject to the obligations it imposes. One way of
describing what land law is all about is to state that it is the study of the
creation and operation of proprietary rights which become part of the
land and not personal to the parties that created them.

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There are a number of sources of land law in Zambia. These include a host
of statutes enacted by the Zambian legislature that deal with specific areas
of land law. The English common law and doctrines of equity including
the statutes which were in force in England on the 17 th August 1911 (being
the commencement of the Northern Rhodesia Order in Council 1911),
customary law, judicial precedent and text books are also a source of land
law.
This chapter has, inter alia, tried to outline or give a summary the two
basic doctrines of English land law; viz; the doctrines of tenure and estate.
The word tenure derived from the latin word tenere (to hold) implies that
land is held under certain conditions. Tenure refers to the rules,
regulations and conditions upon which land is held. According to the
doctrine of tenure, all land in England is held of the Crown, either directly
or indirectly on one or other various forms of tenure. The doctrine of
estates is concerned with the length of time for which land is held. The
doctrine provides that a subject cannot own land (since it is owned by the
Crown), but can merely own an estate or interest in it authorizing him to
hold it for some period of time. A subject may hold the land under fee
simple, for his life, (or life or lives of another or others) under fee tail or
under leasehold.
In Zambia, following the imposition of colonial rule, the freehold estates,
(together with leasehold estates) existed up until 1975, when freehold
tenure or estate was abolished and all existing freehold estates were
converted to renewable statutory leasehold of 100 years commencing 1 st
July 1975.
One consequence of the concept of the estate at common law was that the
law allowed various smaller and simultaneous estates to be carved out of
the fee simple estate. This led to the concept of successive ownership of
land (or successive interest in land) where one person could have an estate
in the land for life and another have rights which fall into possession after
the life interest of the first tenant has ended. Some of the estates or
interests resulting from the creation of settlement could be future and/or
contigent interests. Following the development of the perpetuity rule at
common law, there were limits to the future interests which the law
allowed. The period of time during which future and/or contigent
interests could take effect was limited by the common law rule against
perpetuities or the rule against remoteness of vesting.

The Trust Restriction Act, of 1970, has severely restricted the creation of
settlements, trusts and future interests in any real or personal property
and any estate or interest therein. The Act generally abolished the creation
of settlements, trusts, and any disposition where under property vests in
possession at a future date, subject to the limited exceptions under

29
section 4. Any intended settlement, trust or creation of a future and/or
contigent interest has to comply with or defer to the provisions of the Act.

This chapter has also tried in a general way, to give an idea of the nature
and scope of land law. The chapter has introduced a number of complex
notions and concepts of the law of real property. These concepts and
terms are products of many decades of development in England. There is
need for every student of land law to come or get to grips with these
unfamiliar terminologies and concepts.

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