CHAPTER FOURTEEN

COMPULSORY ACQUISITION OF PROPERTY IN ZAMBIA - THE

POWER OF EMINENT DOMAIN.
14.0 Introduction

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

or an interest in land, usually under statutory power, from the owner
without his agreement. Where there is statutory power to take mere
possession of the land without the acquisition of any estate or interest in it
apart from the possession, it is said to have been requisitioned.
Compulsory acquisition is an aspect of the state’s power of eminent
domain i.e. the power, usually deemed inherent in sovereign states, to
take private property for public use, subject to making reasonable
compensation, as distinct from mere seizure. In the case of United States
of America v Frank L.Jones, Adam of George J. Pumpelly deceased and
others, the United States Supreme Court restated the right or principle of
eminent domain thus:-

The power of taking private property for public uses generally termed the
right of eminent domain belongs to every independent Government. It is
an incident of sovereignty and requires no constitutional recognition. 1

The general law relating to the subject of compulsory acquisition in

Zambia is contained in the Constitution2 and the Lands Acquisition Act3.
In addition, statutory provision for acquisition of land either by the
Government or local or other public authorities is made in legislation
relating to particular subjects. Instances of such legislation giving power
to take possession of, or acquire land compulsorily are, the Electricity Act, 4
the Zambia Tanzania pipeline Act,5 Tanzania – Zambia Railway Act6 and
the Town and Country Planning Act.7 Most of these statutes provide for
the application of the Lands Acquisition Act, in terms of compensation for
the compulsory acquisition.
14.1 Brief Historical Background to Compulsory Acquisition of Property in
Zambia
1
Law ED.US 106-109 page 1015.
2
Chapter 1 of the Laws of Zambia.
3
Chapter 189 of the Laws of Zambia.`
4
Chapter 433 of the Laws of Zambia. Section 14(1) acquisition of land by the President for purposes
associated with generation, transmission, distribution or supply of electricity.
5
Chapter 455 of the Laws of Zambia. Section 7, compulsory acquisition of private land by the
President for use by the company.
6
Chapter 454 of the Laws of Zambia. Section 60, acquisition of land for purposes of Authority, -
rail line under construction.
7
Chapter 283 of the Laws of Zambia. Section 40(1) acquisition of land for planning purposes.

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14.1.2 The Public Lands Acquisition Ordinance
Dunning has observed that legislation relating to the power of eminent
domain in most African Countries could be traced to the period of colonial
rule when the colonial rulers introduced legislation based on their
European experiences and that many African Countries inherited, upon
independence, eminent domain legislation with a broad but real public
purpose limitation.8 Dunning further went on to observe that a number of
those countries have since (their independence) recast their law of
eminent domain. Theses observations by Dunning are true in relation to
Zambia.
Legislation relating to the power of eminent domain in Zambia can be
traced back to 1929 when the Public Lands Acquisition Ordinance was
enacted. The Public Lands Acquisition Ordinance, 9 was first enacted by
the Northern Rhodesia Legislative Assembly in 1929. Section 3 of the
Ordinance empowered the Governor to acquire any lands required for
any public purposes for an estate in fee simple or for a term of years as he
could think proper, paying such consideration or compensation as could
be agreed upon or determined under the provisions of the Ordinance.
Section 2 of the Ordinance defined public purpose to mean for the
exclusive use of Government or for general public use. In terms of section
9 of the Ordinance, any dispute as to compensation and title was to be
settled by the High Court. The Public Lands Acquisition Ordinance, which
at independence became an Act, remained on the statute books until 1970
when it was repealed by the Lands Acquisition Act 1970.10

14.1.3 The Independence Constitution as Regards property Rights and

Compulsory Acquisition.
8
Dunning,H.C, ‘law and economic development in Africa: the law of eminent domain’ Colombia Law
Review 68 (1968)1286 at 1292.
9
Chapter 87 of 1958 edition of the Laws of Zambia - since repealed.
10
See Section 30(1) of the Lands Acquisition Act- Chapter 189 of the Laws of Zambia.

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 The Zambian Independence Constitution, like most of the Independence
Constitutions of former British Colonies and protectorates, was a British
legacy. The Zambian Independence Constitution entrenched a Bill of
Rights. The Bill of Rights or any provisions thereunder could not be
amended without a referendum in which all registered voters were
entitled to vote.11
Section 18 of the Independence Constitution specifically guaranteed
protection against deprivation of property and prohibited compulsory
acquisition, except on the grounds itemized or circumscribed under the
section, in which case adequate and prompt compensation had to be paid.
Further, section 18 (2) of the Independence Constitution allowed the
person entitled to compensation under the section to remit within a
reasonable time after he had received any amount of compensation the
whole of that amount to any country of his choice outside Zambia. It has
been observed that Section 18 of the Independence Constitution
represented “an attempt by the outgoing British Government to secure the
continued exploitation of independent Zambia by the settlers and to protect their
rights to property, although many of them had already left the country
permanently.”12 The Independence Constitution allowed the dispossessed
land owner access to the courts to determine the legality of the acquisition
and the amount of compensation and the promptness of payments.
Section 18 of the Independence Constitution provided that:-

(i) No property of any description shall be compulsorily taken possession

of, and no interest in or right over property of any description shall be
compulsorily acquired, except where the following conditions are
satisfied, that is to say-

(a) the taking of possession or acquisition is necessary or

expedient-
(i) in the interest of defence, public security, public order, public
morality, public health, town and country planning or land
settlement; or
(ii) in order to secure the development or utilization of that, or other,
property for a purpose beneficial to the community; and
(b) provision is made by a law applicable to that taking of
possession or acquisition-
(i) for the prompt payment of adequate compensation; and
(ii) securing to any person having an interest in or right over the
property a right of access to a court or other authority for the

11
See Section 72 of the Independence Constitution.
12
See James, R.W, “Mulungushi Land Reform Proposals Zambia,” 9 Eastern Africa Law Review 124
(1972).

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 determination of his interest or right, and the amount of any
compensation to which he is entitled, and for the purpose of
obtaining prompt payment of that compensation.

After Independence, most of the landed white settlers left the country
leaving large tracts of land. The nascent Zambian Government of
President Kaunda found itself in a situation where it could not legally
acquire the large tracts of land that were left abandoned and unutilized
due to the provisions of section 18 of the Independence Constitution.
Under section 18 of the Independence Constitution, it was not a ground
for compulsory acquisition of land if the same was abandoned,
unoccupied, unutilized, underdeveloped or if it was owned by an
absentee landlord.

14.1.2 The 1969 Referendum

As pointed out above, any amendment to the Independence Constitution’s

Bill of Rights required a referendum. The 1969 referendum was intended
to end all referenda, because it was ultimately intended to remove the
entrenchment clause in the Constitution and simplify the amendment of
any part of the Constitution to a Parliamentary majority. In 1969, a
referendum was held during which the majority of the registered voters
voted for the removal of the entrenchment clause.
Once the referendum had removed the constitutional barrier, the
constitutional procedure was duly amended and Parliament enacted a
number of Constitutional Amendment Acts including the Constitutional
(Amendment) (No.5) Act, 196913. Section 4 of the said Amendment Act
repealed the whole Section 18 of the Independence Constitution and
substituted a new section 18. The new section 18 of the Constitution
continued to guarantee protection against deprivation of property.
Compulsory Acquisition could be done under the authority of an Act of
Parliament which provided for payment of compensation for the property
or interest or right to be taken possession of or acquired. In general, the
amendment Act extended the grounds on which land could be
compulsorily acquired by the Government. The amendment allowed
compulsory acquisition in terms of any law relating to abandoned,
unoccupied or undeveloped land as defined under such a law and also in
terms of any law relating to absent or non resident owners as defined in
such a law.
The new Section 18 provided that:-

(1) save as hereinafter provided, no property of any description shall

be compulsorily taken possession of, no interest in or right over
13
See Act No. 33 of 1969.

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 property of any description shall be compulsorily acquired, except
under the authority of an Act of Parliament which provides for
payment of compensation for the property or interest or right to be
taken possession of or acquired.

(2) Nothing contained in or done under the authority of any law shall
be held to be inconsistent with or contravention of subsection(1) of
this section to the extent that such law provides for the taking
possession or acquisition of any property or interest therein or
right thereover-[citing only what is relevant for our purposes]
(j) in terms of any law relating to abandoned, unoccupied, unutilized
or undeveloped land, as defined in such law;
(k) in terms of any law relating to absent or non-resident owners, as
defined in such law, of any property;

The Constitutional amendment also took away the power of the courts to
determine the amount of compensation. Under the amendment, in default
of agreement the amount of compensation was to be determined by a
resolution of the National Assembly.14 Once the Compensation was
determined by the National Assembly, it could not be questioned in any
court on the ground that such compensation was not adequate.15
It has been observed that the practical effect of the 1969 constitutional
amendment, was that security of rights in land was conditional upon the
land being put to good use, failure to which the rights could be
abrogated.16

14.2 Constitutional Basis for Compulsory Acquisition of Property in Zambia.

The current 1991 Constitution, as amended, like the previous

Constitutions the country has had, provides guarantees and protection
against deprivation of property. Article 16[1] of the Constitution provides
that:-

(1) Except as provided in this Article, property of any description shall

not be compulsorily taken possession of, and interest in or right over
property of any description shall not be compulsorily acquired, unless
by or under the authority of an Act of Parliament which provides for
14
Section 18 (3) (iii).
15
Ibid., Section 18 (4). See the case of Van Blerk v Attorney General and Another , Supreme Court Appeal
No. 138 of 2002. The case is excerpted under the section dealing with case law.
16
See Kaunda, M. “Ownership of Property Rights in Land in the First Two Republics of Zambia: An
Evaluation of Restrictions on Free Alienation and some Lessons for the Future”, Zambia Law Journal.
Volume 21-24, 1989-92, p. 63.

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 payment of adequate compensation for the property or interest or right
to be taken possession of or acquired.”

Article 16 (1) of the Constitution clearly states the general rule that the
acquisition must be under a law which must provide for adequate
compensation. Sub article 2 of article 16 of the Constitution gives
exceptions to the general rule. The sub article provides for instances where
property could be compulsorily taken away without adequate or any
compensation.
Sub article 2 of article 16 provides that:

(2) Nothing contained in or done under the authority of any law shall be
held to be inconsistent with or in contravention of clause (1) to the extent
that it is shown that such law provides for the taking possession or
acquisition of any property or interest therein or right thereover….’ And
it goes on to list numerous situations but of relevance to the subject
matter at hand being the exceptions under article 16(2) (j) and (k)
which provide as follows:

(j) in terms of any law relating to abandoned, unoccupied, unutilized or

undeveloped land, as defined in such law;
(k) in terms of any law relating to absent or non-resident owners, as
defined in such law, of any property.

In terms of Article 16 (3) of the Constitution, the powers to decide on the

amount of compensation, in default of agreement, has been reverted from
Parliament to a court of competent jurisdiction.

Article 65 of the Mungomba Final Draft Constitution 17 (which fall under

the proposed Bill of rights and which to a large extent is a re-enactment of
Article 16 of the current Constitution) provides that:-

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

17
The proposed Constitutional provisions relating to land are dealt with under section 13.4 of Chapter 13.

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

14.3 The Legal Framework for Compulsory Acquisition of Property in

Zambia – The Land Acquisition Act, 1970

The Public Lands Acquisition Act,18 which has been briefly discussed
under Section 14.1.2 above, remained on the statute books up to 1970,
when it was repealed by the Lands Acquisition Act. The Lands
Acquisition Act was enacted following the removal of the entrenched
clauses under the Constitution of Zambia (Amendment) Act of 1969
pursuant to a referendum of the same year. The Lands Acquisition Act
was enacted mainly to address the problem created by absentee landlords
who left after the country attained independence in 1964. The Lands
Acquisition Act was conceived as a radical departure from the Lands
Acquisition Ordinance in that the exercise of powers of compulsory
acquisition is not shackled by an authoritative enumeration of the
18
Chapter 87 of the 1958 Edition of the Laws of Zambia.

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 purposes for which land may be compulsorily acquired. 19 The Act does
not deny the justice of requiring compensation for the compulsory
acquisition of private property. The Act, in terms of section 15, restricts
payment of compensation to only developed and utilized land and not
undeveloped and unutilized land.
Absentee Landlord were singled out or targeted as the object of the Act.
After the passage of the Act the then Minister of Lands and Natural
Resources, Mr. Solomon Kalulu, was reported to have told the National
Assembly that:-

…We will spare no time in making sure that the teeth of that Act are
put to use ... It is evil to live in a country where parcels of land
are possessed by absentee landlords living like dogs in a manger…
the sooner this exercise was done, the better.20

14.4 Salient Provisions of the Act.

The preamble to the Lands Acquisition Act provides that it is “an Act to
make provision for the compulsory acquisition of land and other property and to
provide for matters incidental to or connected with the foregoing”. Section 2, of
the Act, defines land to include “interest in or right over land but shall not
include a mortgage or other charge “. Property is defined under the section to
include “land, and includes any interest or right over property, but shall not
include a pledge or other charge”.
Section 3 of the Lands Acquisition Act empowers the president to
compulsorily acquire any property of any description whenever he is of
the opinion that it is desirable or expedient in the interests of the
Republic to do so. Section 3 provides that:-

Subject to the provisions of this Act, the President may,

whenever he is of the opinion that it is desirable or expedient in
the interests of the Republic so to do, compulsorily acquire any
property of any description“.
The section, and indeed the whole Act, is silent on the question of the
purpose or purposes for which the State may compulsorily acquire
property. In contrast, the repealed Public Lands Acquisition Act had a
clear definition of what constituted public purpose on the basis of which
the Governor and later the President could compulsorily acquire land. Be
that as it may, it has been held by the High Court for Zambia that the fact
that the Act is silent on the question of the purpose or purposes for which
the State may compulsorily acquire property upon payment of
19
Mbao, M. L. M. “Legal Aspects of Uncontrolled and Unplanned Urban Settlements in Zambia; A
Comment on the Housing (Statutory and Improvement Areas) Act, 1974,” Zambia Law Journal, Volume
15.1983. at p.93
20
See Hansard,25 February,1970.

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 compensation does not per se give the state a blanket right to compulsorily
acquire property without any cause or purpose. The purpose for
compulsory acquisition must be a public one.21 The President’s
discretionary powers must be exercised in good faith and not for ulterior
motives.
Once the President has made the resolve to compulsorily acquire property
under section 3, the Minister of lands is required, under a prescribed form,
to give notice of intention to acquire property to the persons interested in
the property. The Act under sections 5 to 9, lays down the steps and
formalities required to complete the process of acquisition.
Part III of the Act, covering sections 10 to 14, deals with the issue of
compensation. Section 10 provides that adequate compensation is payable
where any property is acquired by the president under the Act. Section 11
provides for procedures for dealing with disputes relating to compulsory
acquisition.
Subsections 1 and 2 of section 11 provides as follows:-

If within six weeks after the publication in the Gazette under

section seven of the notice to yield up possession, there remains
outstanding any dispute relating to or in connection with the
property, other than a dispute as to the amount of compensation,
the Minister or any person claiming any interest in the property
may institute proceedings in the court for the determination of
such dispute.
(2) Where any dispute arises as to the amount of compensation,
the Minister or any person claiming to be entitled to compensation
may, and shall if such dispute is not settled within the
aforementioned period of six weeks, refer such dispute to the court
which shall determine the amount of compensation to be paid.

Section 12 of the Act provides for principles for assessment of adequate

compensation for any property that is to be acquired under the provisions
of the Act. In assessing adequate compensation as provided for in the
Constitution for any property to be acquired under the Act, the Minister
and the court are obliged to act in accordance with the principles set out
under the section. In 1992, section 12 of the Act was amended by Statutory
Instrument number 110 of that year so as to permit any assessment of
compensation to take into account (by deduction) any money used in
developing the land which was donated by the Government and any
companies that did not certify that their contribution was specifically
made for the use and benefit of the registered owner. 22 This amendment,

21
Wise v The Attorney – General (1990/92) ZR 124. This case is excerpted under the section dealing with
case law.
22
Section 6 (1) and (2) of the Constitution of Zambia Act No. 1 of 1991 which empowered the President

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 which appears to have been targeted against a property known as the new
UNIP Party Headquarters building which was owned by Zambia National
Holdings Limited, a subsidiary company of UNIP, was one of the issues
which was in controversy in the case of Zambia National Holdings and
Another v The Attorney General.23
Part IV of the Act covering Sections 15 to 16 deals with unutilized and
undeveloped land as well as absent landlords. It will be recalled that the
Act was mainly enacted to address the problem created by absentee
landlords who left large tracts of land that fell out of production. Section
15(1) provides the general rule that no compensation is payable in respect
of undeveloped land or unutilized land. Section 15 enacts as follows:-
“ (1) notwithstanding anything contained in this Act or any other
law, but subject to subsection (2), no compensation shall be
payable in respect of undeveloped land or unutilised land.”

Section 16 defines an ‘absentee owner’ to mean,

A person who is not ordinarily resident in Zambia and in case of a
partnership, a co-ownership or a body corporate, one in which the
effective control lies, directly or indirectly, in the hands of
individuals who are not ordinarily resident in Zambia.

Part V of the Act covering sections 17 to 20 deals with the issues of

transfer of the compulsorily acquired property to the president.
Part V1 of the Act covering sections 21 to 24 deals with the Compensation
Advisory Board which is established under section 21 for the purpose of
advising and assisting the Minister in the assessment of any compensation
payable under the Act.

Section 27 (1) provides for certain dispositions to be void. The section

provides that:-
(1) Any disposition of or other dealing with (other than by or to the
President in terms of this Act) undeveloped land or unutilised
land-

to make a Statutory Instrument, provides:- Subject to the other provisions of this Act, and so far as they
are not inconsistent with the Constitution, the existing laws shall continue in force after the
commencement of this Act as if they had been made in pursuance of the Constitution, but shall be
construed with such modifications, adaptations, qualifications and exceptions as may be necessary to
bring them into conformity with the Constitution.
(2) The President may by statutory instrument at any time within two years of the commencement of
this Act,make such amendment to any existing law as may appear to him to be necessary or expedient
for bringing that law into conformity with the provisions of this Act or the Constitution or otherwise
for giving effect or enabling effect to be given to those provisions.”
23
1993/1994 ZR 115 – The case is excerpted below under the section dealing with case law.

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 (a) in the case of an absentee owner, after the 22nd October, 1969; or
(b) in any other case, after the service of a notice under section
five;
shall be void:
Provided that nothing in this subsection shall apply to any
disposition of or other dealing with land-
(i) the acquisition of which has not been completed in terms of section
twenty-five; or
(ii) by an executor or an administrator pursuant to the will of or on
the intestacy of a person who was ordinarily resident in the
Republic at the time of his death.
(2) Notwithstanding the provisions of subsection (1), where
consideration in money or money's worth has been given prior to
the 22nd October, 1969, under any contract (which for the
purposes of this section includes negotiations evidenced in writing
preparatory to entering into a written contract) for the sale and
purchase of land, the Minister may, if satisfied that hardship
would otherwise be caused, exempt any such contract and any
transfer pursuant thereto from the provisions of this section.

14.5 CASE LAW

(a) The Purpose of Compulsory acquisition must be a public one – The silence of the Land Acquisition
Act on the question of the Purpose or purposes for which the state may compulsorily acquire
property upon payment of compensation does not per se give the state a blanket right to
compulsorily acquire Property without any cause or purpose.

Wise Vs Attorney General (1990/1992) ZR 124 (HC)

BWALYA, B.M. Judge:- This is the plaintiff's claim by way of writ of summons whose details in the
statement of claim are as follows:

1. By a will dated 18th January, 1979 the late Eric Falkenburg Harvey (''the deceased'') bequeathed to his
nephew the plaintiff his leasehold properties being the remaining extent of Farm No. 134a Mazabuka and
Subdivision No. 1 of Farm 136a (“the farm”)

2. The deceased died on 10th May, 1980 and on 27th November, 1981 the executors of the deceased
assented to the bequest of the farm in favour of the plaintiff who thereby became tenant thereof from the
President for a term of 100 years from 1st July, 1975.

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3. That E. F. Harvey Limited was at the date of deceased's death in occupation and working on the said
farms for its use and benefit and continues in such occupation up to the date hereof.

4. By an agreement made in writing the plaintiff granted E. F. Harvey a lease of the said farms excluding the
main residence thereon for a term of 12 months from 1st September, 1982 at a rent of K2 500.00 per month
payable monthly in advance and the said E. F. Harvey Limited undertaking to vacate the farms on 31st
August, 1983.

5. That E. F. Harvey Limited agreed thereto and continued in possession thereof but notwithstanding the
plaintiff's written notice to them on about 20th June, 1983 they held over the farms and kept the plaintiff out
of possession thereof from and after 31st August, 1983 and in addition thereto failed and/or neglected to pay
the agreed rate of K2 500.00 per month for the period of 1st May, 1983, to 31st August 1983.

6. That the plaintiff commenced legal proceedings against E. F. Harvey Limited on 22nd September, 1983
for, inter alia, possession of the said farms, arrears of rentals and mesne profit

7. That on 18th November, 1987 the High Court for Zambia adjudged that the plaintiff is the owner of the said
farms entitled to possession thereof of and mesne profits from 1st September, 1983, to date of judgment.

8. That E. F. Harvey Limited appealed the decision of the High Court to the Supreme Court on 18th
December, 1987. It secured a stay of execution of the order for possession for six months and a further four
months thereafter.

9. On 24th November, 1988 the Honourable Mr Justice M. S. Ngulube, Deputy Chief Justice in Chambers,
found no basis to stay execution on the award for possession of the farms as the two previous stays of
execution were for the purpose of E. F. Harvey Limited harvesting and removing themselves and it would be
totally in equitable to allow them to plant new crops and so again stretch their claim for further relief against
the lower court's judgment in that respect.

10. That about the week following the said decision of the Deputy Chief Justice the then Right Honourable
Prime Minister E Kebby Musokotwane, M.C.C., MP, called the plaintiff to his offices and informed him one
Raymond Barrett of E.F.Hervey Limited had made representations to him and the plaintiff should permit him
or his company to continue farming on the plaintiff's farms.
11. The plaintiff declined to agree to the request and placed his reliance on the decision of the Court as
aforementioned.

12. Therefore the Honourable Minister of Water, Lands and Natural Resources Mr P. Malukutila, M.C.C., MP,
requested the plaintiff's attendance at a meeting at his Chambers. The plaintiff attended the offices at which
time he also found present there the said Raymond Barrett, one Patrick Katyoka and the Member of
Parliament where the farms are located also there to attend the same meeting. The Minister was not present
and the meeting was aborted.
13. That E. F. Harvey Limited moved the full Bench of the Supreme Court to set aside the decision of the
Honourable Mr M.S. W. Ngulube, Deputy Chief Justice and the full Bench of the Supreme Court presided by
the Honourable the Chief Justice, Annel Musenge Silungwe dismissed its motion on 27th December, 1988.
14. On 27th December, 1988 E.F. Harvey Limited withdrew the substantive appeal but did not serve
notification thereof on the plaintiff until after 13th January, 1989.
15. On 9th January, 1989 the Sheriff of Zambia and his bailiff sought to enforce a writ of possession issued
by the High Court for Zambia and on the same day immigration officers showed a deportation order
purported to have been signed by the Honourable Minister of State for Home Affairs who had earlier visited
the said farms.
16. The plaintiff was immediately detained in prison pending deportation. On 13th January, 1989 he was

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served with two notices of intention to acquire property and to yield up possession in respect of the farms
pursuant to ss. 5 and 6 of the Lands Acquisition Act 1970. Copies of the said notices were purported to be
served on Raymond Harvey Barrett. The plaintiff and Raymond Harvey Barret were required to yield up
possession of the farms on or before 12th March, 1989.
17. That E. F. Harvey Limited and Raymond Barrett had continued to be in possession and
occupation of the said farms notwithstanding the judgment of the High Court, the orders of the Supreme
Court and the writ of possession issued by the High Court and executed by the bailiff.
18. That the defendant has dispossessed the plaintiff of the said farms and purported to acquire the
said farms from him and give the said farms to E. F. Harvey Limited. The plaintiff avers that the defendant's
actions undermine and render the adjudicating authority vested in the continuationally established judiciary
nugatory.
19. The plaintiff further avers that the defendant's actions in compulsory acquiring the plaintiff's said
farms and giving it to E. F. Harvey Limited and or Raymond Barrett a private individual and institution
whatever the terms of tenure is not and cannot constitute an acquisition in the national interest as envisaged
in the Constitution and the Compulsory Acquisition Act and is wholly in breach thereof.

The plaintiff claims:

(i) (a) An order and or declaration that the notices of intention to acquire property and to yield up possession
dated 13th January, 1989 served on plaintiff's representative whereby the defendant purported to compulsory
acquire the plaintiff's two farms pursuant to s. 5 and 6 of the Land Acquisition Act 1970, namely the
remaining extent of farm 134a 'Springs' and Subdivision 1 of Farm 136a, both at Mazabuka, Southern
Province of Zambia, is wrongful, irregular and unlawful and of no legal effect whatsoever.
(b) The compulsory acquisition of the said two farms pursuant to s. 5 and 6 of the Land Acquisition
Act 1970 is wrongful, irregular and unlawful.
(ii) An order or declaration that the plaintiff is the owner of the said two farms.
(iii) An award of damages for wrongful compulsory acquisition of the said farms.
(iv) Further and other relief.

The statement of defence is as follows:

1. Paragraphs 2 and 3 are within the personal knowledge of the plaintiff.

2. The defendant puts the plaintiff to strict proof of the matters raised in paras. 4 and 5 of the statement of
claim.

3. Paragraphs 6, 7, 8 and 9 are within the personal knowledge of the plaintiff.

4. The defendant puts the plaintiff to strict proof of the matters raised in paras. 10, 11 and 12 of the
statement of claim.

5. Paragraphs 13 and 14 are within the personal knowledge of the plaintiff.

6. The defendant admits that the plaintiff was declared a prohibited immigrant, and was detained pending
deportation. The defendant further admits that the plaintiff was served with notice to yield up possession.
7. The defendant denies para. 7 of the statement of claim.
8. The defendant denies that the farms were compulsorily acquired for the purpose of giving them to E. F.
Hervey Limited, but argues that the same were acquired in the interest of the Republic, and had nothing to
do with court cases between the plaintiff and Hervey Limited and Raymond Barrett.

9 (a) The notices of intention to acquire property are legal, proper and made in good faith, and therefore
valid.

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 (b) The compulsory acquisition of the said two farms is neither wrongful, irregular nor unlawful, and
therefore the land is now properly vested in the President.

10. As for damages, since compensation is being worked out under the Lands Acquisition Act, no damages
can be awarded by the Court. The proper course of action to take if dissatisfied with the amount for
compensation that will be paid will be to appeal to Parliament.

The plaintiff did not give evidence because he was detained and then deported but called two witnesses. The
defendant was represented and in attendance but called no witnesses.

The facts emanating from the evidence, documents and pleadings before this court are as follows:

1. The plaintiff came to Zambia in 1952 and, in return for devoting his life in assisting his uncle Eric Hervey
on his farms in Zambia, he was to inherit the said two farms and in May, 1980, upon the death of his said
uncle, he did inherit the two farms which are now the subject matter of this action.
2. The plaintiff permitted the widow, after the death of her husband, to continue farming in the name of the
company E. F. Hervey Limited free of charge until September, 1982, when he granted the widow's company
a lease for a period of 12 months.
3. The company, now owned by Raymond Barrett and his wife Lynn, refused to give up possession and
succeeded in protracting the dispute in court until November 1987, when the High Court adjudicated thereon
and held in favour of the plaintiff. The company secured two temporary stays of execution of the judgment
pending its appeal against the judgment of the High Court to the Supreme Court.
4. The Supreme Court, however, on two occasions, the first in November, 1988 and again in late December
1988, dismissed the defendant's application for stay of the order for possession pending the determination of
the appeal. The effect of the order was that E. F. Hervey Limited were subject to removal from the farms by
the Sheriff. Writ of possession issued by the High Court of Zambia was partially executed by the Sheriff of
Zambia on 9th January, 1989 but on 10th January, 1989 E. F. Hervey Limited moved back the items
removed by the Sheriff and for reasons best known to the Sheriff no further action was taken by him on the
writ of possession.

5. Instead, the plaintiff, an established resident, was detained by immigration officers on the night of 9th
January, 1989, and, whilst in prison on 13th January, 1989 was served with the two notices of intention to
acquire the two farms. The plaintiff was compelled to leave the country and did so shortly thereafter without
regaining freedom.

The evidence of PW1 Munir Khan established the following:

(i) He testified in proceedings bearing case No.1983/HP/1471 and had sight of Judge Irene Mambilima's
judgment in those proceedings. The Minister of Land was also aware of the judgment of the High Court and
orders of the Supreme Court.
(ii) He had met representatives and officers of the company E. F. Hervey Limited, namely Raymond Barrett
and Patrick Katyoka, on three to four occasions in his office.
iii) The witness is aware that E. F. Hervey Limited has been in possession of the said two farms all along.
Initially it was in possession because the notifications dated 13th January, 1989 permitted Raymond Barrett
to continue occupying the farms until 12th March, 1989. Thereafter someone authorised them to continue
occupying the farms until 26th June, 1989 when he formally allowed E. F. Hervey Limited to continue
farming. The company is still in occupation and possession of the farms.

The defendant's position from the pleadings is that the farms in question were not acquired for the purpose of
giving them to E. F.Hervey Limited but were acquired in the national interest totally divorced from the
previous proceedings before the courts. However, the plaintiff parries this contention by arguing that this
contention is necessarily suspect in the light of the defendant's earlier denial that E. F. Hervey Limited is not
in possession and occupation of the two farms.

304
The plaintiff further argues that the defendant has not pleaded what national interest the farms were acquired
for, nor has the defendant attempted to lead any evidence in that regard and that even the resolve, if any,
has not been produced in court. It is the plaintiff's submission that it is incumbent upon the defendant - the
State, in this case - to say the purpose for which property (the two farms) is compulsorily acquired.

It is further the plaintiff's contention that it is not sufficient for the defendant to state that because
compensation is offered, it need not stipulate the purpose of acquisition other than national interest or
interest of the Republic. The plaintiff also submits that in the absence of any evidence whatsoever, it could
therefore be concluded that the use for which the two farms have been employed, as being the national
interest or interest of the Republic, the defendant (State) has in mind - the use by E. F. Hervey Limited.

In support of the foregoing contention and arguments, which unfortunately were not challenged by the
defendant, the plaintiff cited several authorities which I shall refer to in the course of the judgment. In spite of
the cross-examination of the plaintiff's witnesses, the evidence of the plaintiff remained unchallenged and
uncontradicted.

This case hinges on the question of whether the said compulsory acquisition of the two farms was done mala
fides (in bad faith). The plaintiff says it was done in bad faith. The defendant gives a flat no and pleads that
notices of intention to acquire property are legal, proper, made in good faith and therefore valid. Be that as it
may, I proceed to examine the law on the question of bad faith vis-à-vis the Act in question.

The Lands Acquisition Act, Cap. 296 of the Laws of Zambia empowers the President of the Republic of
Zambia, whenever he is of the opinion that it is desirable or expedient in the interest of the Republic so to do,
compulsorily to acquire any property of any description. That is the general thrust of this Act. The Act does
not stipulate the purpose or purposes for such compulsory acquisition. I should hasten to say that the silence
of the Act on the question of the purpose or purpose for which the state may compulsorily acquire property
upon payment of compensation does not per se give the State a blanket compulsory acquisition without any
cause or purpose. There is a plethora of case law in common-law jurisdictions which shows that where no
purpose has been indicated in the statute the Courts will look at the intention of the Legislature and invariably
give an implied purpose. This is an indication that there can be no compulsory acquisition without cause or
purpose.

Furthermore, in common-law jurisdictions the purpose for compulsory acquisition of property upon payment
of compensation must be a public one. What constitutes public use frequently and largely depends upon
facts surrounding the subject. It has been held that the letting of private property not for public use but to be
leased out to private occupants for the purpose of raising money is an abuse of the power of eminent domain
and may be redressed by action at law like any other illegal trespass, done under an assumed authority. The
issue of public use is a judicial question and one of law to be determined on the facts and circumstances of
each particular case.

In the case before me, the evidence has shown that acquisition of the two farms and the allowing of E. F.
Hervey Limited and Mr Barrett to remain in occupation of the said farm for agreed rent put the compulsory
acquisition, especially the purpose for such compulsory acquisition, into question. It is needless in my view to
over emphasise that this transaction tainted the compulsory acquisition and is a pointer or indication that it
could not have been done in good faith especially taking into account the facts and circumstances
surrounding the compulsory acquisition. For instance, the High Court and the Supreme Court made certain
decisions in regard to the subject matter. The detention and the deportation of the plaintiff are matters that I
have taken judicial notice of and indeed the timing of the compulsory acquisition cannot be ignored albeit
s.17 of the Land Acquisition Act, Cap. 296, which reads:

''Where a notice to acquire any land under this Act has been published in terms of s.7, the persons
entitled to transfer the land shall, notwithstanding anything to the contrary contained in any other
law or in any order of any court otherwise than under this Act, within two months of the publication
of such notices transfer the same to the President.''

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 Which the Minister of Lands and Natural Resources referred to in his correspondence with the plaintiff's
advocates. Taking the foregoing section into account and the total circumstances of this case, is what I may
call a deliberate move by the Minister to negate the decision of the Courts, the matter cannot be left to rest
there. All these circumstances as shown in evidence of the plaintiff and his submissions, in my view and
finding, amount to the exercise of discretion in bad faith.

In the case before me the compulsory acquisition of the two farms, as I find it, was solely for the interest of
an individual company, E. F. Hervey Limited, and its officers, Mr Barrett being one of them. The purported
interest of the republic is too remote, if at all, a reason and far-fetched. It cannot be sustained in law. What
the said company and its officers failed to acquire before the Courts of law cannot be allowed to be acquired
through intervention of the state (executive) acting in violation of the rule of the law. I fully agree with the
learned counsel for the plaintiff's submission in this regard that 'such action is scandalous and not acceptable
in a democratic society like Zambia.

It is further clear from the facts and circumstances shown in evidence that there was no present and
immediate need for the purported acquisition of the property in question in the national interest or interest of
the Republic. See Halsbury's Laws of England 4th ed. vol 8 para. 50.

In the instant case the state has not to this day applied the farms for a public purpose.

As I have already found that the defendant exercised his discretion in bad faith, the purported compulsory
acquisition is null and void ab initio therefore the plaintiff's action succeeds having proved his case on a
balance of probabilities. For the avoidance of doubt, the declaration and order of the court is that:

(a) the notices of intention to acquire property and to yield up possession dated 13th January 1989,
served on the plaintiff's representative whereby the defendant purported to compulsorily acquire
the plaintiff's two farms under ss. 5 and 6 of Lands Acquisition Act, Cap. 296, namely the
remaining extent of Farm 134a 'Spring' and sub-division 1 of Farm 136a both at Mazabuka
Southern Province of Zambia, are irregular and unlawful and therefore nullified.

(b) the compulsory acquisition of the said two farms is null and void ab initio;
(c) the plaintiff is and continues to be the owner of the said two farms;
(d) the plaintiff is awarded damages to be assessed by the learned Deputy Registrar;
(e) the defendant is condemned in costs, in default to be taxed.

The powers of compulsory acquisition must be exercised in good faith and

not in furtherance of ulterior motives. Where land is compulsorily
acquired on the grounds that its owner is about to make a large profit out
of the land, the court will grant an injunction to restrain or quash the
order. This was the case in Municipal Council of Sydney v Campbell and
Others.24 This was an appeal to the Privy Council from the Supreme
Court of New South Wales. The question in the appeal was whether the
appellant council had rightly been restrained from compulsorily acquiring
the respondents’ land in the city of Sydney under its statutory powers
contained in the Sydney Corporation Amendment Act (No. 39 of 1905) as
amended. The appellants had statutory power to acquire compulsorily
land required for the purpose of making or extending streets, also land
required for “carrying out improvements in or remodeling any portion of
the city.” In connection with the extension of the street, they resolved to
24
[1925] AC 338 (P.C).

306
 acquire the respondents’ land for the latter purpose. They had previously
been restrained from acquiring the land for the extension, on the ground
that it was not really required for that purpose, but that its purchase was
desired because of its probable increase in value. No plan for improving
or remodeling the area was considered or proposed, and evidence as to
proceedings in the council showed that the appellants were endeavoring
to give a new form to the transaction previously decided upon, rather
than considering whether the respondents land was required for
improving or remodeling. The Privy Council held that the evidence
sustained the lower court’s conclusion of fact that the appellants were
exercising their powers for a purpose differing from those specified in the
statute, and that they had rightly been restrained from acquiring the
respondents’ land.
In the course of delivering the decision of the Privy Council, Mr. Justice
Duff observed thus:-

The legal principles governing the execution of such powers as that

conferred by s.16, in so far as presently relevant are not at all in
controversy. A body such as the Municipal Council of Sydney, authorized
to take land compulsorily for specified purposes will not be permitted to
exercise its powers for different purposes, and if it attempts to do so, the
courts will interfere.25

(b) The Lands Acquisition Act does not contravene the letter and spirit of Article 16 of the 1991
Constitution as amended.

In Zambia National Holdings Limited and United National Independence Party

(UNIP) v The Attorney-General,26 the appellants brought a petition in the High
Court to challenge the decision of the respondent to acquire compulsorily under
the Lands Acquisition Act the appellants' land being Stand number 10934 Lusaka
which is also known as the New UNIP Headquarters. The President resolved
that it was desirable or expedient in the interests of the Republic to acquire this
property whereupon the appropriate Minister gave notice to the appellants of
the Government's intention in that behalf and the steps and formalities under the
Act for such acquisition were commenced. The appellants wrote to the
respondent suggesting a sum of money to be paid as compensation but as it
turned out, and as the parties specifically informed the learned trial judge, they
wished the question of compensation to be postponed until the court had
disposed of the challenge to the legality and constitutionality of the compulsory
acquisition. The case proceeded on that basis both in the High Court and the
Supreme Court. The petition was unsuccessful and so was appeal the Supreme
Court. The case is excerpted below.

25
at P. 343.
26
(1993/94) ZR 115 (SC).

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Ngulube C.J, as he then was, (starting at page 121) …The second ground of appeal alleged
that the learned trial judge erred in law and in fact when he decided that the Lands Acquisition Act did not contravene
the spirit and intent of Article 16(1) of the constitution. This Article reads:

“16 (1) Except as provided in this Article no property of any description shall be compulsorily taken
possession of, and no interest in or right over property of any description shall be compulsorily acquired
unless by or under the authority of an Act of parliament which provides for payment of adequate
compensation for the property or interest or right to be taken possession of or acquired."

One of the appellants' arguments at the trial which has not been repeated with any enthusiasm here had
been that any compulsory acquisition under sub-article (i) had to fit into one of the ‘pigeon holes’ sub-article
(2). Sub-article (2) reads:

"(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in
contravention of clause (i) to the extent that it is shown that such law provides for the taking possession or
acquisition of any property or interest therein or right there over . . . "and goes on to list numerous situations
such as satisfaction of any tax, execution of judgments or orders of the court, and so on. Article 16(1) clearly
states the general rule, that is, the acquisition must be under a law which must provide for adequate
compensation. Sub-article (2) ,on the other hand, goes on to give exceptions to, and not categories of, the
general rule. It deals with situations where an involuntary loss of property could take place even without
adequate or any compensation. We see no need for a strained and exotic construction of this straight
forward Article in the manner attempted, and properly rejected, at the trial.

Before this court, Mr Sakala's arguments were to this effect: Prior to the promulgation of Statutory Instrument number
110 of 1992 published on 30th July, 1992, (long after the commencement of the suit) under which the president, in the
exercise of extraordinary powers granted by s.6(2) of the constitution of Zambia Act, number 1 of 1991, effected
amendments to the Lands Acquisition Act, Cap. 296, this last mentioned Act was at variance with the current
constitution in two important respects. In conformity with the old constitutional regime, the Lands Acquisition Act
before the amendments required disputes as to compensation to be referred to the National Assembly when the
current constitution ordains that they be referred to the court. Again, the unamended law simply referred to
"compensation" while the present constitution requires "adequate compensation." The submission was that Cap. 296
was thus obsolete and in contravention of Article 16(1) of the constitution. Section 6(1) and (2) of the Constitution of
Zambia Act, number 1 of 1991, read:

"6 (1) Subject to the other provisions of this Act, and so far as they are not inconsistent with the
Constitution, the existing laws shall continue in force after the commencement of this Act as if they had been
made in pursuance of the Constitution, but shall be construed with such modifications, adaptations,
qualifications and exceptions as may be necessary to bring them into conformity with the Constitution."
(2) The President may by statutory instrument at any time within two years of the commencement of this Act,
make such amendment to any existing law as may appear to him to be necessary or expedient for bringing
that law into conformity with the provisions of this Act or the Constitution or otherwise for giving effect or
enabling effect to be given to those provisions."

In our considered opinion, even assuming that Statutory Instrument No. 110 of 1992, had not been passed,
subsection (1) of Section 6 which we have quoted affords a complete answer to Mr. Sakala's arguments. It obliges that
existing laws be read so as to be conformable to the constitution so that the word "adequate" to qualify the
compensation and the reference of disputes to the court rather than to the National Assembly would have had to be
imported into Cap. 296. This Act was not unconstitutional for any of the reasons advanced by the appellants. We do
not understand the learned trial judge to have found that the Act was saved only by the late amendments effected
through the Statutory Instrument but if indeed this was the finding, then we have no difficulty in affirming, as we have
done that Section 6(1) of Act No. 1 of 1991 had already catered for this and any other existing laws in need of
adaptation, modification and so on. Of course, to any extent that any existing law could not be made to conform, it
would be void to the extent of any such inconsistency, as provided by Article 1(2) of the constitution.
The appellants did not dispute the power of the President under s.6(2) of Act number 1 of 1991 to amend
laws. They argued, however, that since the amendments affected fundamental rights, only Parliament could legislate
on such matters when Article 79 would have had to be complied with, Article 79 deals with alterations to the

308
constitution and the special procedures needed for this, including a national referendum to endorse changes to the
part dealing with fundamental rights. With respect to learned counsel for the appellants, the Lands Acquisition Act
is not part of the Constitution and is, on the contrary, simply a law envisaged under the constitution for depriving
persons of their fundamental right of owning property. We agree with Mr. Kinariwalla for the State that the Statutory
Instrument was amending an ordinary enactment, that is Cap. 295, and had nothing whatsoever to do with
amendments to the constitution.
The second leg of the argument was that the statutory instrument's effective date could not be lawfully
backdated so as to adversely affect the appellants' rights regarding the quantum of compensation. Rule 1(2) of the
Statutory Instrument reads:-

"1.(2) This Order shall be deemed to have come into operation on the 30th August, 1991."

In Rule 3 of the order, S.12 of the Lands Acquisition Act (the Section setting out the principles governing
compensation) was amended so as to permit any assessment of compensation to take into account..... by deduction
no doubt ... any money used in developing the land which was donated by the Government and any companies which
do not certify that their contribution was specifically made for the use and benefit of the registered owner. The
evidence showed that the bulk of the money, if not all, used to build the imposing complex the subject of this case
came from Government grants approved by the legislature during the One Party era. We shall return to this aspect
under another ground of appeal. However, in relation to the backdating of the Statutory Instrument's effect, Mr. Sakala
relied on Article 80 of the constitution which provides for publication and the coming into force of statutory instruments.
He also relied on s.19 of the Interpretation and General provisions Act, Cap. 2. Subsection (1) which is relevant to this
discussion reads:

"19. (1) Subject to the provisions of this section...

(a) the date of commencement of a statutory instrument shall be the date of its publication in the
Gazette or, where a later date is specified therein, such later date; and
(b) every statutory instrument shall be deemed to come into force immediately on the expiration of the
day next preceding the date of its commencement."

The law is clear and Mr. Kinariwalla's argument that this extraordinary statutory instrument should be treated
on the same footing as an enactment by parliament cannot be entertained. However, the question is whether a
statutory instrument can legally have or be given retroactive effect. We bear in mind that in terms of s.21 of Cap. 2, a
statutory instrument becomes part of the written law and the question whether it is intended to have retrospective
effect is to be answered by the application of principles identical with those by which the question is determined in
relation to statutes. We have lifted these sentiments out of paragraph 747 of Halsbury's laws of England, volume 36,
3rd Edition, A perusal of paragraphs 644 and 647 of the same reference book supports the view that there is nothing
objectionable to written laws having retroactive effect, in relation to pending litigation and existing causes of action,
when they do not affect substantive rights or impose new liabilities or when the new provisions can be classed with
provisions as to procedure only, In Elsie Moobola v Harry Muwezwa,27 we considered the introduction of new remedies
as falling to be classed with provisions as to procedure so that the presumption against retrospective effect did not
apply to the distribution of the estate of a deceased husband which was to be effected after the coming into force of a
new enactment which was not in operation when he died.
Two points emerge from what we have been saying. The first is that statutory instruments can only come
into force in the manner ordained by the relevant section of Cap. 2 and Article 80 of the constitution. Citing Johnson v
Sargant (8) as one of their authorities Keir & Lawson, the learned authors of Cases in constitutional Law, 4th Edition,
have this to say at page 25;

"But there is this difference in the operation of statutes and acts of subordinate legislation: a statute takes
effect on the earliest moment of the day on which it is passed or is declared to come into operation, while orders,
regulations and other acts of subordinate legislation take effect only when they are published to the outside world. This
is a reasonable distinction, for whereas the passing of a statute is invariably preceded by prolonged and open
discussion, many acts of subordinate legislation are imposed on the public without previous warning (see Johnson v.
Sargant, (1918) 1 K. at p. 103, and Statutory Instruments Act, 1946 S.3)"

27
(1990-1992) ZR 38.

309
 We believe the foregoing answers the point about the coming into force of the statutory instrument under
discussion. The second point is whether the Statutory instrument having come into operation only when it was
published, can have effect on pending litigation such as this case where the issue of compensation has not been
litigated or adjudicated. Contrary to the appellant's submissions, the issue of compensation which has not been
litigated relates to a remedy on new principles of assessment and the amendments effected to the Lands Acquisition
Act in such event will apply in accordance with the reasoning in the Moobola case. In any even, the application of the
new principles of assessment can only be prospective on the facts of this case although they will apply to an existing
cause of action. It will not be unlawful to make the deductions now provided for. As will shortly appear when we come
to the fourth ground of appeal, the deductions can not be resisted on other grounds to be discussed in a moment. In
sum, we are satisfied that the lands Acquisition Act did not contravene the spirit and intent of Article 16(1) of the
Constitution as alleged in the second ground of appeal. On the contrary, if we take the liberty to borrow from the
language of the headnote in Harel Freres Ltd v Minister of Housing,28 a case from Mauritius - the procedure for the
compulsory acquisition of land in Zambia prescribed by the Lands Acquisition Act gives faithful effect to the spirit and
intent of Article 16(1) of the constitution. It gives the landowner recourse to the courts to challenge the legality and
constitutionality of the compulsory acquisition and, in default of agreement, the question of compensation can also be
referred to the courts. The ground of appeal in this behalf is unsuccessful.
The third ground of appeal alleged error on the part of the learned trial judge when he held that the
compulsory acquisition of the appellants' property had not been done in bad faith. it was not in dispute that the Lands
Acquisition Act gives the power to the President to resolve in his sole judgment when and if it is desirable or expedient
in the interests of the Republic to acquire any particular land. Quite clearly, a provision of this type does not mean that
the President’s resolve cannot be challenged in the courts both as to legality and other available challenges whereby
arbitrariness and other vices may be checked. There was no dispute on the law that the exercise of statutory powers
could be challenged if based on bad faith or some such other arbitrary, capricious or ulterior ground not supportable
within the enabling power.
The appellants alleged that the acquisition was based on an ulterior motive or an intent simply to punish the
appellants and they relied on the evidence of two senior members of the present ruling party, who confirmed that it was
the publicly stated intention of the MMD party even before it ascended to power that it would retrieve properties
acquired with public funds so as to benefit the people of Zambia as a whole. The learned trial judge found that, far
from demonstrating bad faith, the MMD had demonstrated good faith to the extent that they did not plan to take away
indiscriminately all the appellants' properties but only those acquired or built with State money. The simple answer to
this ground was that the appellants did not discharge the burden which was on them to demonstrate mala fides on the
part of the President. Their additional argument that the backdating of the statutory instrument already discussed
showed such bad faith can not persuade us to their point of view. The Statutory Instrument was issued and
amendments to the Lands Acquisition Act effected under powers lawfully available to the President and the desire
evinced therein to obtain full credit for State funds utilized when computing the amount of compensation demonstrated,
in our considered opinion, the highest regard for the interests of the Republic which would otherwise be called upon to
keep on paying several lots of public money when the State had received no valuable or any consideration for the large
contribution originally made to the construction of the Complex.

The fourth ground of appeal alleged error on the part of the learned trial judge when he decided that a grant
made by parliament could be retrieved especially grants made to UNIP "if it can be shown that the sovereign or
Parliament that granted it was corrupt or that donations were made in circumstances bordering on duress or undue
influence." The argument was that a grant, like a gift, once given can not be retrieved. Mr. Sakala submitted that
there could have been no undue influence in this case because of the intervention of an independent parliament which
authorized the grants. The learned trial judge had, in dealing with this case, made a lot of gratuitous and
uncomplimentary political remarks against the appellants. he had at one point in the judgment specifically warned that
he intended to go astray and did so with a vengeance and in unfortunate language, prompting Mr. Sakala to claim that
his clients had not had a fair trial. All litigants are entitled to courteous treatment, However, we do not see that the trial
was necessarily unfair especially that the issues were largely legal ones to be decided on the law. Thus, although
there was no evidence to support an allegation of corruption, the point about undue influence was quite valid. As we
pointed out in Re pan Electronics Ltd,29 where there is a relationship of trust and confidence, and inexplicably large
gifts are made, the presumption of undue influence will be rebuttable only on proof of full, free and informed thought on

28
[1988] LRC (const.) 472.
29
(1988-1989) ZR 19.

310
the part of the donor. It can not be argued that gifts can never be retrieved since there are exceptions, such as undue
influence, which can vitiate the gift if the donor who had acted to his prejudice repents of the transaction. The
evidence on record shows that the appellants were in a position to and did dictate to the Government of the day to
transfer to themselves the land in question which had previously been allocated to certain Ministries. We take judicial
notice that, during the One Party era, UNIP controlled and formed the legislature and the Government. Even the first
appellant enjoyed a special status as evidenced by amendments to the Income Tax Act introduced by Act No. 12 of
1982 and Act No. 14 of 1987, both of which have since been replaces by Act No. 11 of 1992. The 1982 Act emended
S.41 of CAP. 668 specifically in relation to donations for the construction in Lusaka of the headquarters of the United
National Independence party which were deductible as charitable donations. The 1987 Act added Zambia National
Holdings Ltd. to the list of organisations whose income was exempted from tax. In truth, there was between the
second appellant and the Government the plainest and clearest fiduciary relationship which raised a presumption of
undue influence so strong that it could be rebutted only on the strongest evidence. The intervention an "independent"
Parliament which was formed by the second appellant to authorize the Government also formed by the second
appellant to make the large donations for which there was no quid pro quo of any kind can not conceivably be regarded
as evidence rebutting the presumption and the irrefutable fact of undue influence. As long as there was any sort of
control by the ruling Party over the Government and Parliament, the last two could not be regarded as having been in a
position to form an entirely free and independent unfettered judgment. The gift or the grant in this case is recoverable
on behalf of the Republic quite independently of the principles of assessment under the Lands Acquisition Act and
when coupled with those principles, the case for taking the Government donations into account when computing the
compensation payable is, in our most considered view, unanswerable and unassailable. Because it is unnecessary for
the decision here, we have refrained from discussing the possibility that there was also a resulting trust on the facts
disclosed.

In any case, we consider that this is not unreasonable to expect that any political party forming the Government and
having the control of public funds will consider itself at doing so in trust for the people of this country and for their
common advancement benefit. The fourth ground of appeal also fails.

The fifth ground of appeal read that "the learned trial judge erred and misdirected himself in law when he ruled that the
provisions of S.11 (4) of the Lands Acquisition Act which require that possession of the land in dispute can only be
taken after payment of just compensation into court were not breached by the respondent who entered the premises
without fulfilling that condition precedent". The learned trial judge infact held the view that the appellants were correct
in contending that the tender of compensation was a condition precedent to the taking of possession but found that
there was no need for such extra payment when the complex had been constructed with Government money.

Under S.11 of the Lands Acquisition Act which sets out the procedures thereof, Subsection (1) deals with disputes
other than one relating to compensation; subsection (2) provides for disputes as to the amount of compensation to be
referred to the court; subsection (3) which talked about the finality of any compensation determined by the National
Assembly was repealed by statutory instrument No. 110 of 1992; while subsection (4) and its proviso reads:

"(4) The existence of any dispute as aforesaid shall not affect the right of the President and persons
authorized by him to take possession of the property:

Provided that where a dispute exists as to the amount of compensation or the right to acquire the
property without compensation, possession may be taken only after payment of the amount
regarded by the Minister as just compensation...

(i) in the case of a dispute as to the amount of compensation, to the person entitled to compensation
(or into court if the identity of such person, or any question of apportionment, is also in dispute);

(ii) in the case of a dispute as to the right to acquire the property without compensation, into court."
At first glance, the proviso relied upon makes curious reading since it seems to undermine the substantive provision.
However, guided by the attitude adopted by the Privy Council in Commissioner of Stamp Duties v Atwill and Others
which we have no reason to discount, we too consider that it is very frequently the function of proviso merely to limit or
qualify rather than to add to the substantive provision. However, there may be situations where a proviso will not
necessarily have that restricted effect. Having examined s. 11(4) against the backdrop of the scheme under the Act
for the resolution of disputes, we are satisfied that the proviso should be construed as having qualified the substantive

311
provision so as to introduce a procedural condition precedent whenever there is a dispute. However, it is also clear
that the existence of a dispute in fact is a sine qua non for the invocation of this proviso. On the facts of this case -
and Mr. Sakala was constrained to concede that the whole argument may have been a moot point - there was no
dispute between the parties or before the court concerning the amount of compensation within the intention of s.11.
The parties had neither agreed nor disagreed on any sum of money and they specifically requested the court not to go
into the question of compensation which was postponed until after the determination of the challenge based on legality
and constitutionality. In any event, it is unnecessary for the purpose of this judgment to consider what would be the
result if possession were taken without a prior tender of compensation or if the State contemplated an acquisition
without compensation since no such dispute exists in this case. The learned trial judge was on firm ground in his
conclusion, though not in his reasons for the conclusion. The acquisition here was not unlawful for want of a prior
tender of compensation.

(c) Compulsory Acquisition of property - procedures to be followed under the Lands

Acquisition Act.

Van Blerk v Attorney General and Another, Supreme Court Appeal No. 138 of
2002 (unreported)

[The facts of the case appear from the judgment of the Supreme Court delivered by Chirwa, JS.]

This appeal is against the decision of the High Court which dismissed the appellant’s claims involving Farm No. 4300,
Lusaka. The appellant, Jonathan Van Blerk, issued a writ of summons in which he sought the following reliefs:-

1) A declaration that the plaintiff (appellant) is still a leasee or tenant of all that unexpired residue of all that
piece of land known as Farm No. 4300, Lusaka;

2) A declaration that the purported compulsory acquisition of the said Farm No. 4300 was ultra vires the
provisions of Cap 189 of the Laws of Zambia and was therefore null and void.

3) An injunction restraining the second defendant (2nd respondent) from taking possession and
consequently demarcating and/or replacing and allocating the said farm until the determination of the
afore going questions; or

4) That alternatively adequate compensation to be given to the plaintiff (appellant) for the said compulsory
acquisition;

5) Any further relief and costs.

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In dismissing the appellant’s claims, the learned trial judge held that the appellant’s failure to surrender the title deeds
of the said farm to enable the State to sub-divide and get the portion compulsorily acquired caused the land to remain
idle and not to be used for the reasons it was compulsorily acquisitioned. That the President acted in good faith in
acquiring the land and that if the appellant felt that the compensation was inadequate, he should have appealed to the
National Assembly as provided under the law and that in any event the compensation was agreed upon after
evaluation of the said farm.

This is an old matter and we regret for the delay in rendering our judgment, this is due to the Court’s other pressing
matters.

There are some facts common in this matter. The appellant was a registered owner of leasehold of Farm NO. 4300,
Lusaka.. The President, in exercise of the power vested in him under Section 5 of the Lands Acquisition Act, Cap 289
then, did through the Minister give his intention to acquire a portion from the said farm, by notice dated 22 nd April 1987.
The total acreage of the farm is 724 acres and the President wanted 351,2142 acres of the said farm. Negotiations to
rescind the acquisition decision or compensation took too long but finally the parties agreed on the sum of K540,000 as
compensation. This compensation was only paid in November 1989. For this late payment, the Minister did agree to
pay interest on it but this has not been done. Upon the issuance of the acquisition notice, the appellant was requested
to surrender the title deed to the property to facilitate cancellation of the same and demarcation of the farm to remove
the acquired portion of the farm but the appellant has to date not surrendered the Certificate of title.

From these common facts and findings of the lower court, the appellant has filed four (4) grounds of appeal and these
are:

1) The honourable trial judge in the Court below misdirected himself both in law and fact when
he failed to appreciate that the compulsory acquisition was not desirable or expedient.

2) The honourable trial judge in the Court below misdirected himself both in law and fact when
he failed to appreciate that the compulsory acquisition was not done in good faith.

3) The honourable judge in the Court below misdirected himself both in law and fact by holding
that the failure to surrender the certificate of title was crucial to the determination of the
question whether compulsory acquisition was desirable or expedient; and

4) That the learned trial judge misdirected himself in fact and in law in relation to the procedure
for compensation.

The appellant and 2nd respondent filed written heads of arguments on which they relied in addition to their oral
submissions. The 1st respondent adopted the written submissions filed by the 2nd respondent.

Grounds 1 and 2 were argued together. In arguing these two grounds on behalf of the appellant, Mr Matibini submitted
that the learned trial judge did not consider and appreciate the circumstances of the compulsory acquisition in that had
he done so, he would have found that it was no desirable or expedient to do so because after issuing the Notice the
respondents did nothing to develop the portion they acquired for the purpose for which they acquired the property,
namely building a housing estate. It was argued that the enabling Act puts emphasis on the desirability and
expediency for the interest of the Republic to acquire the land and that it is for the state to prove this desirability and
expediency. It was submitted that from the conduct of the State in not utilizing the land after Notice for compulsory
acquisition, the Court should have found that the acquisition was not desirable or expedient in the interest of the
Republic and for this proposition, the case of PATEL V THE ATTORNEY-GENERAL,30 was referred to. Added to this
argument, it was submitted that the decision of the President is open to challenge in court for the court to determine
whether the President exercised his discretion properly and the case of ZAMBIA NATIONAL HOLDING VS
ATTORNEY-GENERAL,31 was relied upon. Mr. Matibini submitted that looking at the circumstances of the case, the

30
(1969) ZR 99.
31
(1993-1994) ZR 115.

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President did not exercise his discretion to compulsorily acquire the land reasonably and as such the acquisition
should be quashed.

In answer to the arguments in support of grounds 1 and 2, Mr. Ngulube, for the 2 nd respondent, submitted that the land
was properly acquired in the interest of the Republic for the purposes of creating a housing estate which was for the
benefit of the Lusaka residents and community. It was argued that nothing has been done since acquisition because
there is in existence a court injunction restraining the 2 nd respondent from moving on to the land in question and that
even after the judgment in the High Court, there was obtained a stay of execution of that judgment. It was also argued
that after the acquisition of the land, the appellant was asked to surrender the certificate of title to the land so that it is
cancelled and sub-division done but the appellant has not done so up to date. It was Mr Ngulube’s further submission
that the appellant has failed to establish mala fide in the acquisition of the land. In the absence of evidence of mala
fide and on the evidence that the land was required in the public interest to establish a housing estate, the learned trial
judge was on firm ground to dismiss the action and allow the acquisition to stand.

In arguing ground 3, Mr Matibini for the appellant, submitted that the learned trial judge erred in law and fact in blaming
the appellant for not surrendering the certificate of title and as a collateral to it, that the acquisition was not desirable or
expedient. It was argued that if the State was serious about the necessity to acquire the land, it should have moved
the Registrar under Section 84 of the Lands and Deeds registry Act, Cap 185 to call for and cancel the certificate of
title if the appellant refused or neglected to surrender the certificate of title. It was submitted that failure to make such
an application further demonstrates the mala fide of the State in acquiring the land.

In answer to this ground of appeal, Mr. Ngulube, for the 2 nd respondent submitted that the failure to surrender the
certificate of title cannot and should not be linked to the determination of whether the acquisition of the land was
desirable or expedient as the desirability or expediency is determined at the time the decision is made. It was further
submitted that in the present case, the appellant was asked to surrender the certificate of title but he neglected and
that failure to make an application under Section 84 of the Lands and Deeds Registry Act is not fatal to the decision
made by the President to compulsorily acquire the land.

We will consider all the three grounds of appeal together and in doing so we wish to go a little into the history of the
matter again. The appellant is a registered owner of Farm No. 4300, Lusaka. On 22 nd April 1987 the President gave
Notice, through the Minister to acquire a portion of the said farm What followed was the appellant’s appeal against the
acquisition, which he did personally and through the then Commercial Farmers Bureau. These negotiations failed.
Then came the question of compensation. This too took long as the unexhausted improvements on the farm had to be
valued and it was finally agreed at K540,000 and this was paid to the appellant in November 1989. The appellant was
not satisfied with this amount and negotiations went on and finally the 1 st respondent agreed to pay interest on that
sum since it took long to pay the appellant. The interest was not indicated and no interest has been paid.

To have redress, the appellant commenced an action against the respondent by way of Originating Summons in
February 1995. Among the reliefs prayed for was an injunction restraining the respondents from taking possession
and consequently demarcating and/or replanning and allocation of the said farm. This injunction was granted. At the
hearing of the originating summons, the same were dismissed. The appellant then applied under Order 39 of the High
Court Rules for review of the order dismissing the Originating Summons. This application was also dismissed. The
appellant then issued a Writ of Summons against the respondents asking for the same reliefs including an injunction.
The injunction was granted pending the determination of the main action. Upon judgment in favour of the respondents,
the appellant obtained a stay of execution of the judgment pending the determination of the appeal.

The appellant in his evidence gives the history of the matter, more or less as we have outlined above. He then testified
that the acquisition of part of his farm should be declared to have been done in bad faith because he was fully utilizing
the farm and he believed that if the land were to be acquired, it must have been acquired for such community use as
hospital or for some security reasons and put to use immediately to show expediency.

On behalf of the respondents, evidence was led that the requirements of the law were satisfied and that the land could
have been utilized for the purposes for which it was acquired but the appellant failed to surrender the Certificate of title.
If the whole farm was acquired, the Certificate of title could have been cancelled but because it had to be portioned,
the parties had to agree on demarcation and that is why the land was not used, so the evidence stated.

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We have considered the evidence and the correspondence between the parties on record. From it, it is clear that upon
the land been compulsorily acquired following the provisions of the law, the appellant was informed that the portion of
land so acquired was required for the Lusaka City Council to establish a housing estate. From the evidence, it is clear
that the intention could not be carried out first, because the appellant failed or neglected to surrender the Certificates of
title for the purposes of marking off the acquired piece of land. There then followed a period of negotiations during
which the appellant was trying to persuade the President to reverse his decision and when this failed, the appellant
resorted to court actions which included injunctions. From the evidence, it is clear to us that, by conduct and actions,
the appellant prevented the respondents from effecting their intentions. From the facts we cannot find the President
acted unreasonably. Not is there any evidence to show undesirability or inexpediency in the acquisition of the land.
The appellant cannot have his cake and eat it. He caused the inaction on the acquired piece of land. From the
evidence, we cannot fault the learned trial judge’s conclusions. We note from the appellant’s arguments that the
possible use of Section 84 of the Lands and Deeds Registry Act, Cap. 185 by the respondents was never raised at trial
and only raised before us. We have looked at Section 84 of the Lands and Deeds Registry Act and we fail to see
under which provision of the Section the respondents would have moved the Registrar of Lands and Deeds Registry to
cancel the Certificate of title. There was nothing wrong with the certificate of title per se for the Registrar to rectify, nor
were there any entries on it wrong. The whole certificate of title had to be surrendered by the appellant for the
Commissioner of Lands to cancel it and have the farm divided according to the order of compulsory acquisition. There
was no default on the part of respondents in not using the provisions of Section 84 of the Lands and Deeds Registry
Act because the section does not apply in the circumstances of this case. We therefore, see no merits in the grounds
of appeal 1-3 and they are dismissed.

Ground 4 of the appeal attacks the learned trial judge on his ruling on the procedure on compensation in that he held
that if the appellant was dissatisfied with the amount of compensation he should have appealed to the National
Assembly as provided for under Section 11(2) of the Lands Acquisition Act before amendment. It has been submitted
that the learned trial judge erred in so holding because the said section had been amended by the deletion of
subsection 2 and as this was procedural amendment, it had a retrospective effect to mean that amendment to the law
in 1992, should be taken to have been effective in 1987 when the compulsory acquisition was made, thereby making it
unnecessary for the appellant to go to the National Assembly to seek further or better compensation. To support this
submission, Mr Matibini referred the court to Halsbury’s Laws of England 4 th Edition Volume 4 at Paragraph 1287 and
the cases of ATTORNEY-GENERAL V VERNAZZA and R V CHANDRA DHAMA 32. It was submitted that the lower
court erred in stating that the appellant failed to take the matter to the National Assembly on the question of adequacy
of compensation which was settled between the parties because the appellant did indicate that the compensation was
inadequate.
For the respondents, it was argued that at the material time when the land was compulsorily acquisitioned, Section
11(2) was applicable and if the appellant was not satisfied with the compensation, he should have taken the matter to
the National Assembly within 6 weeks of the Notification and a claim now was too late. It was submitted in the
alternative that the amount K540,000 compensation was agreed upon by the parties and there was no need to go to
the National Assembly. It was then prayed that this ground of appeal be also dismissed.
We have considered this ground of appeal. In dealing with this ground of appeal we have to look at the law as it was at
the time the compulsory acquisition was made. Section 11(1) and (2) provided as follows:

11(1) If within six weeks after the publication in the Gazette under Section seven of the Notice to yield up
possession there remains outstanding any dispute relating to or in connection with the property,
other than a dispute as to the amount of compensation, the Minister or any person claiming any
interest in the property may institute proceedings in the Court for the determination of such dispute.

(2) Where any dispute arises as to the amount of compensation the Minister or any person claiming to
be entitled to compensation may, and shall if such dispute is not settled within the afore mentioned
period of six weeks, refer such dispute to the National Assembly which shall by resolution
determine the amount of compensation to be paid.”

The rights of the appellant at the time of the compulsory acquisition of the property are as provided in the two Sub-
sections; and the relevant Sub-section for this ground of appeal is Sub-section 2. The right was if the appellant was
not satisfied with the amount, he should have referred the matter to the National Assembly for determination. It has

32
[1906] 2 C.B. 335.

315
been geniusly argued that this is a procedural point which was amended by the repeal of the Sub-section by the
Statutory Instrument No. 110 of 1992, thereby making the matter still open to be decided. While agreeing with
authorities quoted to us by Mr Matibini on the effect of amendments to procedure that may be retrospective unless
there are some good reasons or the Act itself says so, we have great difficulty in accepting that the amendment of
1992 was procedural and therefore affected the position of the appellant. The provisions of Section 11 before
amendments gave rights to the affected persons, including the appellant. We hold that was a right because, there was
further provision under Sub-section 3 which provide as follows:-

“(3) No compensation determined by the National Assembly under this Act shall be called in any Court
on the grounds that it is not adequate.”

This, to us, shows that the legislature did not intend the provisions to be procedural; they conferred a right that was
meant to be satisfied and final. We would not, therefore, agree that the issue of compensation is still open after the
provisions of the law were satisfied.
In the present case, there is evidence that the amount of compensation for the unexhausted improvements at the time
was agreed upon by the parties after evaluation of the improvement. This to us is the market value at the time. The 1 st
respondent did agree to pay interest on the compensation paid for the delay in effecting the same. This has not been
done, this is because, from the evidence of the 1st respondent, the appellant was allowed to utilize the land on which he
paid no rent. Having looked at the claim as pleaded and on the evidence, the ground of appeal also fails…

Following the dismissal of the appeal, the second respondent (Lusaka City
Council) proceeded to advertise for the plots on the land which was in issue in
this case (the ‘Baobab’ land) without complying with the procedures spelt out
under Circular No. 1 of 1985.33 This resulted into the Ministry of Lands
withdrawing the agency of the City Council in respect to the ‘Baobab’ Land.
The case excerpted below illustrates the need to strictly follow the statutory
procedures prescribed under the Land Acquisition Act for any purported
compulsory acquisition to be valid. The case also illustrates the point that
statutes conferring powers for compulsory acquisition are strictly construed by
the courts. If an order is made by the Minister without complying strictly with
some statutory requirement in the Act, the court will set aside the order.

(d) Need to strictly follow the statutory procedures for compulsory acquisition to be valid -
Registered mortgagees - persons interested in property to be compulsorily acquired.

Mpongwe Farms Limited (In Receivership) and Two Others V Attorney General
– 2004/Hp/0010 [H/C Unreported]

Mwanamwambwa M.S. Judge:-The applicants are seeking Judicial Review of the decision by the Hon. Minister
of Lands made on 8th August 2003. By that decision the Minister, on behalf of the President, gave notice of intention to
compulsorily acquire Farm No. 4809, Ndola.

The Applicants are seeking an order of Certiorari, to move into the Court, the decision in question for the purpose of
quashing it. Further on in the alternative, they are seeking a declaration that Minister’s decision is null and void for
illegality and procedural impropriety; it having been made in breach of sections 5 and 7 of the Lands Acquisition Act,
1970, Cap. 189 of the Laws of Zambia.

33
This is discussed under Chapter 21 dealing with procedures on land alienation.

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The facts of the matter are as follows: the first applicant is the registered owner of the said farm. The second
applicant holds a first mortgage on the farm. The secured sum is US$ 626, 000. The mortgage thereof is dated 14 th
July 1997. The third applicant holds a second mortgage dated 13th October 1998, on the farm. The secured sum is
US$ 485, 000.

By a notice dated 8th August 2003, the Hon. Minister of lands stated her intention, on behalf of the President, to
compulsorily acquire the farm. There is conflicting evidence as to whether the notice was published on 8 th August
2003. The State gave several reasons for the acquisition of the farm. These are stated in paragraphs 9-16 of the
opposing affidavit.

The State repeatedly adjourned the matter for the discussion with a view to an amicable settlement. Nothing came out
of those adjournments. Then they stopped attending court altogether. Hearing proceeded in their absence. However,
I note that they filed written submissions in response to the Applicants’

I have examined the supporting and opposing affidavits. I have also considered the parties’ written submissions. I will
deal with them in due course.

Judicial review will lie on any of the following three grounds. One is illegality. This refers to a situation where an
inferior court or tribunal or public authority charged with a public duty acts without, or in excess of it’s jurisdiction: see
Council of Civil Service Union and Others v Minister for the Civil Service and the Rules of the Supreme Court, Order
53/14/28A

The second is irrationality. This is unreasonableness verging on absurdity. It is a situation where the decision
challenged is so outrageous in its defiance of logic that no sensible person who applied his mind to the question to be
determined, could have arrived at it. This is what is known as the “wednesbury unreasonableness.” See Associated
Provincial Picture House Limited V Wednesbury Corporation and Chitala V Attorney General.

The third is procedural impropriety. This is failure to act with procedural fairness towards the person who will be
affected. It also covers failure by an administrative tribunal or authority to observe procedural rules that are expressly
laid down in the legislative instrument by which his jurisdiction is conferred.

Turning to this case, I shall deal with illegality and procedural impropriety at one go. Compulsory acquisition of
property by the State is governed mainly by sections 5 and 7 of the Lands Acquisition Act, 1970. These provide as
follows:

“5. (1) If the president resolves that it is desirable or expedient in the interests of the Republic to acquire any property,
the Minister shall give notice in the prescribed form to the persons interested in such property and to the persons
entitled to transfer the same or to such of them as shall after reasonable inquiry be known to him.

(2) Every such notice shall, in addition, invite any person claiming to be interested in such property to submit such
claim to the Minister within four weeks of the publication of the Gazette notice in terms of section seven

7. (1) Every notice under Section five or six shall be served either personally on the persons to be served or by
leaving it at their last usual place of residence or business if any such place can after reasonable inquiry be found; and
if any such person is absent from Zambia or if he or his last usual place of residence or business cannot after
reasonable inquiry be found, such notice shall be left with the occupier of such property or, if there be no such
occupier, shall be affixed upon some conspicuous part of such property.

(2) If any person upon whom such notice is required to be served is a body corporate, such notice shall be deemed to
have been duly served if left at, or addressed by prepaid registered letter to such body corporate at, its registered office
or principal office in Zambia.

(3) Every such notice shall be published in the Gazette as soon as may be practicable after the same has been served
in accordance with the provisions of this section, and, in addition, in the case of land, a caveat shall be lodged with the
Registrar.

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(4) Where any such notice has been published the acquisition of the property to which it relates shall not be invalid by
reason only of any irregularity in the service of the notice or by reason of it having been published prior to its service on
any person required to be served therewith.”

The question for my consideration here is whether the Minister complied with sections 5 and 7 of the Act.

I agree with counsel for the State that Judicial Review towards Certiorari and related remedies, is a discretionary
remedy. A party is not entitled to it as of right. However, that discretion must be exercised judiciously.

In the first place I agree with Mr. Mulikita and Mr. Mubonda that the first, second and third Applicants are persons
interested in the Farm and entitled to transfer it, within the wording of section 5(1) of the Act. The first Applicant is such
person because it is the registered owner. The second and third Applicants qualify as such persons because they are
registered mortgagees.

I also agree with them that from the Lands Register, which is kept by the Lands and Deeds Registry of the Ministry of
Lands, the Minister had constructive notice of the three Applicants, as such interested and entitled persons. She could
have easily ascertained their identities and status from the Register.

Section 5(1) requires the Minister to give to the persons interested in the property and to the persons entitled to
transfer the property. The section uses the word “shall”. It is clear that this is a mandatory requirement.

All the three Applicants in this matter are body corporates. Therefore, they must be served with the notice in the
manner prescribed by section 7(2) of the Act.

In my view, a notice under section 5(1) is intended to inform interested and entitled persons of the imminent
compulsory acquisition of property. Therefore, on the facts of this case, the notice under section 5(1) can only be
operative and effective as such if it was served on the three Applicants, in the manner prescribed by section 7(2) of the
Act. A “notice” that is not served does not constitute a “notice” under section 5(1) of the Act. It does not satisfy the
requirement of section 5(1).

From the evidence on record, I find that the “notice” attached as exhibit “JK1”, to the State’s opposing affidavit was not
served on the three Applicants in the manner prescribed by Section 7(2) of the Act. Therefore, the purported notice
was invalid. It was not a notice for purpose of section 5(1) of the Act. In effect, sections 5(1) and 7(2) of the Act were
not complied with by the Minister.

Counsel for the State invited me to invoke Section 7(4) of the Act. This subsection is set out above. It applies to a
situation where the notice under section 5(1) was published but irregularly served. It was meant to validate acquisition
where there was no proper service of notice. It was meant to cure irregular service.

In the present case, as correctly argued by Mr. Mulikita, there was no service at all. There was not even irregular
service. In my view, there is nothing to cure. Therefore, section 7(4) is of no use to the State.

Publication of notice in the Government Gazette is a separate legal requirement in addition to service under section
7(2) Publication alone is not enough.

Counsel for the State argued that despite breach of procedure, the acquisition should be allowed to stand because it
was done in public interest. He referred me to the American Case of Hawaii Housing v Midkiff U.S. 1984, 299. I do not
accept this argument. National interest, as the basis for acquisition, is an issue that goes to the merits of decision.
The merits of the decision is not the concern of Judicial Review. Judicial Review is concerned with the decision
making process only. The State itself passed legislation and devised statutory procedure to govern compulsory
acquisition of property. For whatever purpose such property is acquired, the State must follow that law and procedure.
This what the Rule of Law entails.

Since the State did not comply with sections 5(1) and 7(2) of the Act, I hold that it acted illegally in compulsorily
acquiring Farm No. 4809 Ndola. I also hold that there was procedural impropriety. The State failed to follow

318
prescribed procedure. Therefore, I hereby issue an order of Certiorari; move into this Court, the decision by the
Minister and quash it accordingly….

The state in the above case gave several reasons for the attempted acquisition of
the land in issue.34 The reasons were:-

(a) That the possession of the land was done with a view to replanning it in the
interest of the Republic.

(b)That part of the land for which title was issued was already a subject of
previous certificates of title and thereby in effect creating title on title.

(c) That the land in issue was too large and was granted contrary to Government
policy of not granting more than 250 hectares per person and that the land also
cut in half the chiefdom of chief Lesa.

(d) That the land in issue included land where villagers lived and have lived for
generations and where they had agriculture and burial grounds and shrines.
The land also included a resettlement scheme established and developed by
Government in extent of 22, 700 hectares.

(e) That the granting of possession of the land in issue whose extent was about
66, 102, 0429 hectares and bigger than the entire Lusaka province was contrary to
natural justice, public policy and good governance.

(f)That the land had largely remained undeveloped and unutilized though most
of it was fenced and;

(g) That replanning of the land would promote harmony between the applicants
and the surrounding community and assist in national development

The Lands Acquisition Act does not stipulate the purpose or purposes for which
the state may compulsorily acquire property. This, however, as pointed out in
the Wise case does not per se give the state a blanket right to compulsorily
acquire property without any cause or purpose. The purpose of compulsory
acquisition must be a public one.

34
These were stated in the affidavit in opposition to the application for Judicial Review sworn by the then
Minister of Lands, Hon. Judith Kapinjimpanga.

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14.6 Summary of Chapter Fourteen

This chapter has examined and considered the law relating to the right of
eminent domain. The power of taking private property for public uses generally
termed as the right of eminent domain belongs to every independent State. It is
one of the incidents of sovereignty. The law relating to compulsory acquisition
of property in Zambia is mainly contained under Article 16 of the 1991
Constitution, as amended and the Lands Acquisition Act. In general, security of
rights in land under Article 16 of the Constitution is guaranteed as long as the
land is put to good use failure to which the rights could be abrogated. Under
Article 16, any compulsory acquisition must be under a law which provides for
adequate compensation. There are, however, some exceptions under the Article
where no compensation may be made which include cases where land is
abandoned, unoccupied, unutilized or undeveloped, or is owned by a non-
resident.
The Lands Acquisition Act provides the legal framework for compulsory
acquisition of property in Zambia. The powers vested in the President under
section 3 of the Act to compulsorily acquire any property of any description
whenever he is of the opinion that it is desirable or expedient in the interest of
the Republic so to do, are very wide powers which may be used for ulterior
motives. As pointed out in the National Holdings Limited case, a provision of
this type can be challenged in the courts if it is based on bad faith or malafides or
some such other arbitrary, capricious or ulterior ground not supported within
the Act. The provisions of the Act have to be strictly followed adhered to in any
compulsory acquisition as courts will generally interpret penal statutes strictly.
The Land Acquisition Act is silent on the question of the purpose or purposes for
which the State may compulsorily acquire property upon payment of adequate
compensation. This does not, per se, as held in the Wise case, give the state a
blanket right to compulsorily acquire property without any cause or purpose.
The purpose of compulsory acquisition must be a public one. The issue of public
use or what is desirable or expedient in the interest of the republic is a judicial
one and depends on the facts of each case. This has been ably illustrated by the
cases that have been excerpted under the chapter.

320