CHAPTER TWO

OWNERSHIP OF LAND AND ITS LIMITATIONS

2.0 Introduction

It was pointed out in chapter one that there is no such thing as absolute
ownership of land under English law. All land in England is held directly
or indirectly from the crown on one of several tenures. In Zambia all land
is vested absolutely in the President and is held by him in perpetuity for
and on behalf of the people of Zambia1. Individuals occupying land, own
estates, rights and interests in land and not the land itself. They own rights
to occupy and use the land for a defined period of time. It is however
usual in ordinary parlance or every day speech to describe a person who
has substantial rights in land as the owner of land. Riddal 2 has observed
that for practical purposes the holder of a fee simple is today treated as
being the equivalent of the owner of the land but that the term ‘owner’ has
not, except in common parlance replaced the term holder of a fee simple.
The word ‘owner’ or ‘ownership’ shall be used in this chapter without
losing sight of the legal position both in England and Zambia.

2.1 The Concept of Ownership

According to Dias, ownership consists of an innumerable number of

claims, liberties, powers and immunities with regard to the thing owned. 3
The right of ownership comprises benefits and burdens. The former
consists of claims, liberties, powers and immunities, but the advantages
these give is curtailed by duties, liabilities and disabilities.4 Sir Pollock has
defined ownership as the entirety of powers of use and disposal allowed
by law.5 According to Salmond, ownership in its most comprehensive
signification, denotes the relation between a person and any right that is
vested in him. That which a man owns in this sense is in all cases a right. 6
A person having ownership has the fullest group of rights which a person
can legally have in relation to things of that kind, including at least some
of the rights to occupy, possess, use, abuse, use up, let out, transfer in
security, sell, exchange, gift, bequeath and destroy.7
The rights of ownership may be vested in a single person, or in two or
more persons either as joint tenants or owners, or as tenants in common.
1
See Section 3 of the Lands Act of 1995, Chapter 184 of the Laws of Zambia.
2
Riddal,J.G, introduction to land law,4th Ed, London, Butterworths 1988 p.50.
3
Dias, R,W,M, jurisprudence, 5th ed, Butterworths, London, 1985, p.292.
4
Ibid at p.297.
5
F. Pollock (sir), jurisprudence and legal essays, selected and introduced by Goodhart, London, ST Martin
Press,1961
6
Fitzgerrad, Salmond on jurisprudence, 7th ed, London, Sweet and Maxwell, 1966, P. 277.
7
Walker, D.M the oxford companion to law, Caredon, press, Oxford, 1980, p 910 (on Ownership).

30
 Joint tenants possess the thing or property undivided but have only one
title to the property so that on the death of one joint tenant the title
accresces to the other or others until it is vested in one who then becomes
the sole owner. Tenants in common possess the property in undivided
shares but each has distinct title to a determinate share which on his death
passes to his representatives8. Ownership may also be divided according
to the time of its enjoyment whether in possession or expectancy i.e
present or future.9

2.2 Ownership at Common Law

At common law the owner or holder of the largest estate in land – the fee
simple estate - had extensive powers of control, disposition and use and
enjoyment of land in which his estate subsisted. 10 In physical terms he
may enjoy everything on, beneath and above the land. The maxim is cujus
est solum, ejus, est usque et ad inferos,’ [he who owns the soil is presumed to
own everything ‘up to the sky and down to the centre of the earth]. This
prima-facie includes all mines and minerals and any chattel not the
property of any known person which is found under or attached to the
land.11

2.3 Common Law Limitations or Restrictions on Ownership

2.3.1 Liability in Tort

In exercising rights over land a landowner must not interfere with the
legal rights of others. Liability in tort may arise:
(a) where a nuisance is caused, e.g. smell or noise12.
(b) under the rule in Rylands vs Fletcher,13 e.g. where water escapes

2.3.2 Gold and Silver

At common law Gold and Silver belong to the crown.

2.3.3 Treasure Trove

8
Co-ownership of property is covered under Chapter 4 of this book.
9
See Section 1.5 of the preceding chapter – dealing with successive interests in land.
10
Hayton, D, megarry’s manual of the law of real property, 6th ed. London, ELBS, p 550.
11
Ibid at page 551.
12
See National Hotels Development Corporation [T/A Fair View Hotel] v Motala [2002] ZR 39 (S.C).
the case is excerpted under the section dealing with case law.
13
[1868] LR HL 330.

31
 Treasure trove belongs to the crown at common law. A chattel or object
may amount to a treasure trove if:-
(a) it consists of gold and silver;
(b) it is hidden in or on the land deliberately and not merely lost; and
(c) the true owner is unknown.14
In Attorney General of Duchy of Lancaster V Overton Limited, 15 a hoard
of Roman Coins was held not to constitute treasure trove because they
contained only small amounts of silver.

2.3.4 Wild Animals

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

2.3.5 Water Rights

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

percolates through his land in a defined channel. 18 In respect to
percolating water the owner of land is at liberty to draw water without
regard to the neighboring owner.19 A riparian owner (the owner of the
land through which the water flows) is entitled to the flow of water
through his land unaltered in quantity and quality, subject to the ordinary
use by the upper riparian owners and he is bound by a corresponding
obligation to the lower riparian owners.20

2.3.6 Air Space

At common law probably no action lay for trespass in respect of passage

through the airspace above the land in such circumstances as to involve
no interference with the reasonable use of it.21
In Lord Bernstein of Leigh Vs Sky Views and General Limited, 22 it was
held that the rights of an owner of land in the air space above extended
only to such height above the land as was necessary for the ordinary use
and enjoyment of the land and the structures on it and above that height
the owner had no greater rights in the airspace than any other member of
the public. In this case, since the defendant’s aircraft had flown several
hundred feet above ground and had not caused any interference with any
14
Attorney General Vs. Trustees of British Museum [1903] 2 CH 598 at pp. 608- 611.
15
[1982] 1 ALLER 524.
16
Hayton, D, Supra note 10 at p 552.
17
Ibid.
18
Ibid.
19
Ibid.
20
See John Young and Co Vs. The Bankier Distillery Co. [ 1893] A.C 691.
21
Hayton,D, Supra note 10 p 563.
22
[1977] 2 All ER 902.

32
 use to which the plaintiff put or could wish to put his land, the defendant
had not infringed such rights as the plaintiff had in the airspace and had
not therefore committed, a trespass. In the course of delivering his
judgment Griffith, J observed and commented thus:-

I can find no support in authority for the view that a landowner’s rights
in the air space above his property extend to an unlimited height. In
Wandsworth Board of Works v United Telephone Co 23 Bowen LJ
described the maxim, usque ad coelum, as a fanciful phrase, to which I
would add that if applied literally it is a fanciful notion leading to the
absurdity of a trespass at common law being committed by a satellite every
time it passes over a suburban garden. The academic writers speak with
one voice in rejecting the uncritical and literal application of the maxim:
see, by way of example only, Winfield and Jolowicz on Tort, Salmond on
Tort, Shawcross and Beaumont on Air Law, McNair on the Law of the
Air, and Halsbury’s Laws of England. I accept their collective approach as
correct. The problem is to balance the rights of an owner to enjoy the use
of his land against the rights of the general public to take advantage of all
that science now offers in the use of air space. This balance is in my
judgment best struck in our present society by restricting the rights of an
owner in the air space above his land to such height as is necessary for the
ordinary use and enjoyment of his land and the structures on it, and
declaring that above that height he has no greater rights in the air space
than any other member of the public. Applying this test to the facts of this
case, I find that the defendants’ aircraft did not infringe any rights in the
plaintiff’s air space, and thus no trespass was committed. It was on any
view of the evidence flying many hundreds of feet above the ground and it
is not suggested that by its mere presence in the air space it caused any
interference with any use to which the plaintiff put or might wish to put
his land. The plaintiff’s complaint is not that the aircraft interfered with
the use of his land, but that a photograph was taken from it. There is,
however, no law against taking a photograph, and the mere taking of a
photograph cannot turn an act which is not a trespass into the plaintiff’s
air space into one that is a trespass.24

2.4 Statutory Limitations on ‘Ownership’, Use and Enjoyment of Land in

Zambia.

23
[1884] 13 QBD 904.
24
Ibid at pp. 907-908.

33
 A number of statutes in Zambia have eroded away certain rights of an
‘owner’ of land at common law. In relation to England, the learned authors
of Megarry’s Manual on the Law of Real Property have observed that the
massive statutory innovation has overlaid the traditional freedom to act
with a complex network of restrictions. 25 The learned authors have further
observed that the enactments were necessitated by the pressure of social
and economic forces working in the community.26 The statutory restrictions
on ownership and enjoyment of land in Zambia are discussed below.

2.4.1 Lands Act

The Lands Act,27 vests all land absolutely in the President who holds it in
perpetuity for and on behalf of the people of Zambia.28 All land in Zambia
is administered and controlled by the President for the use or common
benefit direct or indirect of the people of Zambia 29. The individuals
occupying the land own estates, rights and interests in land and not the
land itself. That is, they own rights to occupy and use land. It is, however,
usual in everyday speech to describe a person who has substantial rights
in land as the owner of land.

2.4.2 Minerals –Lands Act and Mines and Minerals Act

Section 2 of Lands Act defines ‘land’ to mean “any interest in land whether
the land is virgin, bare or has improvements but does not include any mining
rights as defined in the Mines and Minerals Act”. Section 3 of the Mines and
Minerals Act,30 provides that the rights to all minerals in Zambia are
vested in the President.
Subsections 1 and 2 of section 3 of the Mines and Minerals Act provide
that:-
(1) All rights of ownership in, searching for, and mining and disposing
of, minerals are hereby vested in the President on behalf of the
Republic.
(2) The provisions of this section have effect notwithstanding any right,
title or interest which any person may possess in or over the soil in, on
or under which minerals are found.

Section 2 of the Mines and Minerals Act defines a ‘mineral’ to mean:-

25
Hayton, D, supra note 10 at p 550.
26
Ibid.
27
Chapter 184 of the Laws of Zambia.
28
Ibid section 3.
29
Ibid section 3 (5).
30
Chapter 213 of the Laws of Zambia.

34
 any material substance, whether in solid, liquid, or gaseous form, that
occurs naturally in or beneath the surface of the earth, but does not
include water, petroleum or any substance or thing prescribed by the
Minister by regulation;
It is clear from the definition of ‘land’ under section 2 of the Lands Act as
well as from subsections 1 and 2 of Section 3 of the Mines and Minerals
Act that ‘ownership’ of land does not mean or include ownership of
minerals occurring or found on, under or beneath the land.

2.4.3 Water Act

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

and amend the law in respect of the ownership, control and use of water and to
provide the matters incidental thereto or connected therewith.”
Section five of the Water Act vests the ownership of all water in Zambia in
the President. The section provides that:-

The ownership of all water is vested in the President. The use, diversion
and apportionment of all water shall be made in terms of this Act.

In terms of application, the Water Act applies throughout Zambia apart

from:-
(a) the Western Province;
(b) the Zambezi River;
(c) the Luapula River;
(d) that portion of the Luangwa River which constitutes the boundary
between Zambia and Mozambique.32

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

he likes) to mean:-
(a) the water in a swamp, the boundaries of which are wholly
within the boundaries of the land owned by any one
landowner and which do not cross or abut against the
boundaries of the said land and to or from which no stream
extending beyond the boundaries of the said land flows,
either continuously or intermittently;
(b) the water in a spring which is situated wholly within the
boundaries of the land owned by any one owner and which
does not naturally discharge water into a water-course
beyond the boundaries of the aforesaid land or abutting on
its boundaries;

31
Chapter 198 of the Laws of Zambia.
32
Ibid section 3.

35
 (c) the water brought to the surface of such aforesaid land by
artificial means;
(d) flood waters which are impounded on the aforesaid land by
artificial means and would otherwise have run to waste;

‘Public water’ is defined under section 2 to mean:-

all water flowing or found in or above the bed of a public stream, whether
visible or not, including lakes, swamps or marshes forming the source of
such a stream or found along its course;

The water Act provides for three types of water uses, viz: ‘primary use’,
‘secondary use’ and ‘tertiary use’. Section 2 of the Act defines ‘primary
use’ to mean “the use of water for domestic purposes and the support of animal
life (including the dipping of cattle).”
‘Secondary use’ is defined under the same section to mean “the use of water
for the irrigation of land and pisciculture.”
Section 2 further defines ‘tertiary use’ to mean “the use of water for
mechanical and industrial purposes or for the generation of power;”
In terms of section 8 of the Act, any person shall have the primary use of
public water which is found in its natural channel or bed at such places to
which access may be lawfully had i.e no water rights are needed for the
‘primary use’ of public water. Any intended use of public water for
secondary or tertiary use requires water rights from the Water Board
established under section 23 of the Act.33

2.4.4 The Town and Country Planning Act

At common law, any land owner was free to use and develop his land in
any way he wished provided he did not commit a nuisance or trespass
against his neighbor’s property. The need to provide for a rational and
33
See sections 11 and 12 of the Act.

36
 integrated pattern in the process of land use and development
necessitated the enactment of the Town and Country Planning legislation
in 1909 in England34. The Town and Country Planning legislation of
England was, like a number of other statutes, ‘imported’ into the Northern
Rhodesia Protectorate by the colonial administration. The Town and
Country planning Act35 places controls on the development and
subdivision of land by requiring planning permission before undertaking
any development or subdivision on land. A landowner in Zambia is
therefore no longer at liberty, as was the case at common law, to use or
develop his land as he wishes. Megarry and Wade have observed, in
relation to social control of land in England, that it is against the interests
of the public at large for land in England owners to have unfettered power
to develop their land as they wish.36

2.4.5 The Public Health Act (Building Regulations)

The building regulations promulgated under the Public Health Act37 are
discussed in detail under Chapter Eighteen of this book. In a nutshell, the
building regulations require that a building permit be obtained before
erecting any structure or building. The building regulations cover such
matters as the construction, materials, height, sanitation, ventilation and
size of rooms. A land owner, therefore, has to comply with the building
regulations by obtaining a building permit before erecting any building or
structure on his land.

2.4.6 The Aviation Act

The preamble to the Aviation Act38 provides that it is an “Act to enable

effect to be given to the International Convention on Civil Aviation and to make
provision for the control, regulation and orderly development of aviation within
Zambia.”
Subsection 1 of section 12 of the Civil Aviation Act provides that:-

No action shall lie in respect of trespass or in respect of nuisance, by

reason only of the flight of an aircraft over any property at a height above
the ground, which, having regard to wind, weather and all the
circumstances of the case, is reasonable, or the ordinary incidents of such
flight, so long as the provisions of this Act and of the Convention are duly
complied with.

34
Hayton, D, supra note 10 at p. 553.
35
Chapter 283 of the Laws of Zambia.
36
Megarry and Wade, the law of real property, 4th ed, London, Sweet and Maxwell, 2000, p. 1336.
37
Chapter 295 of the Laws of Zambia.
38
Chapter 444 of the Laws of Zambia.

37
2.4.7 Zambia Widlife Act - Ownership of Wild Animals

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

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

(1) Subject to the other provisions of this Act, the absolute ownership of
every wild animal within Zambia, is hereby vested in the President
on behalf of the Republic.
(i) where any wild animal, which is not a game animal or a protected
animal, is captured or killed or otherwise reduced into possession by
any person in accordance with this Act, the absolute ownership of
that animal or of the carcass of that animal, as the case may be, is
hereby transferred to and vested in such person;
(ii) where any game animal or protected animal is lawfully captured
or killed or otherwise reduced into possession by any person in terms
of a licence issued under paragraphs (a), (b), (c), and (h) of section
thirty-three or under any authority granted under this Act, the
absolute ownership of the game animal or protected animal or of the
carcass or any trophy of those animals, is, subject to the other
provisions of this Act and to the terms and conditions of the licence
or authority, as the case may be hereby transferred to , and shall vest
in, the licensee under the licence or the person so authorised, as the
case may be;
(iii) where any wild animal is found resident on any land, the right
to harvest such animal shall, subject to such regulations as the
Minister may, on the advice of the Authority, prescribe, vest
absolutely in the owner of such land.
(2) Notwithstanding subsection (1), the absolute ownership of any wild
animal, which has been captured or reduced into possession by any
person prior to the commencement of this Act, subject to any other
written law in force on the date of the capture of the animal or of its
reduction into possession, is hereby declared to be vested in the
person, who, on the commencement of this Act whether directly or
through an agent, is in actual lawful possession of the animal.
(3) Except as provided by subsection (1), nothing in this section shall
be deemed to transfer to any person the ownership of any game
animal or protected animal which is found dying or dead, or of any
found carcass, part of a carcass, trophy or meat or any game
animal or protected animal.
39
Act No. 12 of 1998.
40
A wild animal is defined under section 2 to mean: “any Animal ferae naturae, and includes any game or
protected animal, but does not include any domestic animal.”

38
 (4) Notwithstanding any other provisions of this section, if any
person hunts or reduces into possession any game animal or
protected animal in contravention of this Act, the absolute
ownership of that game animal or protected animal or of the
carcass or any trophy of the animal shall not be transferred, or be
deemed to have been transferred, to that person or to any other
person by reason of its having been so hunted or reduced into
possession.
(5) The Authority may, in writing, transfer to any person the absolute
ownership of any game animal or protected animal which has been
hunted or reduced into possession by any other person in
contravention of this Act, and such other person shall forthwith
deliver up the game animal or protected animal to the person to
whom the ownership has been transferred in terms of this
subsection.

2.4.8 Protection of Tenants – The Rent Act and Landlord and Tenant
(Business Premises) Act.

The purpose of the Rent Act41 is to protect tenants against their landlords.
The Act protects the tenants against the landlord in general in terms of
protection against eviction and/or possession and control of rent.
The Landlord and Tenant (Business Premises) Act 42, as per its preamble, is
an “Act to provide security of tenure for tenants occupying property for business,
professional and certain other purposes and to enable such tenants to obtain new
tenancies in certain cases.” The two statutes have interfered with the
traditional freedom of contract by restricting the ability of landlords or
owners of land to do as they may want in relation to the tenancy
agreements with their tenants.

2.4.9 The Land Acquisition Act- Compulsory Acquisition of Land

Compulsory acquisition may be defined as the taking of land or an

interest in land from the owner without his agreement. Section 3 of the
Lands Acquisition Act43 empowers the President, whenever he is of the
opinion that it is desirable or expedient in the interests of the Republic, to
compulsorily acquire any property of any description. The compulsory
acquisition of property has to be in public interest. Compulsory

41
Chapter 206 of the Laws of Zambia. The Act is covered under Chapter 15 of this book.
42
Chapter 193 of the Laws of Zambia. The Act is covered under Chapter 16 of this book.
43
Chapter 189 of the Laws of Zambia.

39
 acquisition of property in Zambia is dealt with in detail in Chapter
Fourteen of this Book.

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

2.5 Case Law

National Hotels Development Corporation T/A Fairview Hotel V

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

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

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

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

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

40
undisturbed enjoyment of his property. No precise or universal formula is possible, but a useful test is what is
reasonable according to ordinary usages of mankind living in a particular society.”

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

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

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

This chapter has examined and considered the concept of ownership of

land and its limitations. Under the doctrine of estates, the allodial
ownership of all land in England is in the crown. A subject cannot own
land per se but an estate or interest or right in the land of a defined
duration. At common law the owner of the largest estate, the fee simple
estate, is treated as being the equivalent of the owner of land. The owner
or holder of a fee simple estate had, at common law, extensive powers of
control, use, disposition and enjoyment of the land in which his estate
subsisted. In physical terms he owned and enjoyed everything on, beneath

44
(1940) AC 880.

41
and above the land. But even at common law there were a number of
limitations or restrictions on ownership and enjoyment of land. It is only
prudent that any society must impose checks on such an extensive right of
ownership in accordance with the principle of the maxim sic utere tuo, ut
alienum non laedas. i.e use your own property as not to injure your
neighbour.’ In Zambia a number of statutes have eroded away certain
rights of the ‘owner’ of land at common law. These restrictions have been
put in place in order to protect the wider interests of society and the
public at large. The National Hotels Development Corporation case,
excerpted above, clearly shows the need to impose checks on the rights
associated with ‘ownership’ and enjoyment of land so that in our
ownership and enjoyment of land we do not injure others. We need to
live but also at the same time let others live.

42