Land Law

LAND LAW IN ZAMBIA

Session Three
Objectives

•  Introduction to land law in Zambia

•  Definition of Land law in Zambia
•  The Nature and Scope of Land Law
•  Ownership of land and its limitations
tern Rhodesia and North Eastern Rhodesia protectorates were created under the provisions of the 1889 North Western and North Eastern Rhodesia Orders in Council. On 29 th Octobe

HISTORICAL BACKGROUND OF THE LAND TENURE SYSTEM IN

ZAMBIA

• This session gives a background of land tenure in Zambia.

• This was from the time of the BSA Co up to 1964 to 1972.
• The customary land tenure system up to 1964 to 1973 system
regulated the manner and ways in which the indigenous peoples
could acquire, exercise and enjoy rights in land.
HISTORICAL BACKGROUND OF THE LAND TENURE
SYSTEM IN ZAMBIA

• Before this time land was administered under customary law.

• In 1889 north western Rhodesia and north eastern Rhodesia were
created under the north western Rhodesia and north eastern
Rhodesia orders in council
 The Company was authorized and empowered to make treaties with local peoples North of the Zambezi River and to make land grants.

HISTORICAL BACKGROUND OF THE LAND TENURE SYSTEM IN

ZAMBIA

• BSA co was entrusted to administer these two territories

• Authorised to make treaties with the local people on land grants
North of the Zambezi river.
• Also authorised to carry out mining activities and make
concessions and other rights.
• BSA co got the mandate from Royal Charter and two orders in
council.
British South Africa Company’s Claims to
Ownership Of Land

• The 1889 Orders in Council [Northwestern and Northeastern

Rhodesia Order in Council] and the 1911 Northern Rhodesia Order
in Council contained no provision vesting land in the Company
although the Company claimed ownership of the land in the two
territories.
• They based their claims on the basis of the concessions they made
with the chiefs.
• These concessions and claims were questioned and challenged.
British South Africa Company’s Claims to
Ownership Of Land

• The other claim to land by the Company, was said to be by virtue

of declaration of protectorate status.
• See cases ofCox vs African Lakes Corporation (A.L.C) and Pettit
Vs African Lakes Corporation, otherwise known as the Kombe
cases
• The view that protectorate status meant title to land was rejected
by the Privy Council
Northern Rhodesia Order in Council, 1911

• The previous otders in coumcil were revoked and the two

territories became northern Rhodesia
• The country continued to be administered by the BSA Co. under
the powers conferred by its Charter of Incorporation and the 1889
Orders in Council.
• The 1911 Order in Council, like the earlier Orders, contained no
provision vesting land in the Company.
Northern Rhodesia Order in Council, 1911

• As far as land was concerned the 1911 Order in Council divided the
Country into two parts,
• Laaand within Barotse land and other lands
• In Barotseland the litunga had the authority over land. The BSA Co
granted land to the white settlers who were in need of it.
• The BSA Co granted land to the white settlers who were in need of
it. Freehold title was granted.
Northern Rhodesia Order in Council, 1911

• Grants of land in this manner did of course involve displacement of

the indigenous population contrary to the assurances contained in
1911 Order in Council.
 Northern Rhodesia Order In Council, 1924

• By an agreement (commonly known the Devonshire agreement) \

dated the 29th day of September 1923 and made between the
Secretary of State for the colonies and the B.S.A Company, the
Crown relieved the Company of the administration of Northern
Rhodesia as from 1st April 1924\
• Alienation of land in Barotseland was not allowed.
• In 1924 a governor was appointed to administer on behalf of the
Britisgh government.
Northern Rhodesia Order in Council, 1911

• The 1924 Order in Council contained no provision vesting land in

the British sovereign or the Governor.
• Grants and dispositions of land were made to the settlers under
the powers conferred upon him by the Order.
Creation Of Reserves And Crown Lands:
Northern Rhodesia (Crown Lands And Natives
Reserves) Order In Council, 1928

• Sir Herbert Stanley had a policy of land reservation which was

approved by the colonial office.
• The indigenous people were not to be able to enjoy customary
land rights over Crown rights.
• The natives were removed from crown lands and consigned to
Native Reserves.
Reserves And Crown Lands

• Native Reserves were vested in the Secretary of State and set

apart in perpetuity for the sole and exclusive use and occupation
of the Natives.
• The Governor was required to assign land within each Native
reserve to Africans, “whether as tribes or portions of tribes.”
Reserves And Crown Lands

• African customary law regulated tenure in the reserves

• English Law regulated the interests in Crown land for freehold
estates and leasehold estates. This was the genesis of the
country’s dual land tenure system that we have today.
The Creation of Trust lands Reserves – The Northern Rhodesia
(Native Trustland) Order In Council 1947

Northern Rhodesia (Gwembe District) Order In Council, 1959

Passed in order to carter for the development of the Kariba Dam
• Several Orders in Council were not revoked at independence when
the independence order was passed at independence
• Only modification were made and adaptations were made to suit
the prevailing local conditions.
The Creation of Trust lands Reserves – The Northern Rhodesia
(Native Trustland) Order In Council 1947

• The Zambia (State land and Native Reserves) Order, 1964

transferred to and vested in the President of the Republic of
Zambia all rights in or in relation to Crown lands or other
immovable property in Northern Rhodesia that were vested in the
British sovereign immediately before independence and all Native
reserves that were vested in the Secretary of State immediately
before Independence.
Zambia (Stateland And Reserves) Order 1964, Zambia (Trustland) Order
1964, Zambian (Gwembe District) Order, 1964

• On attaining independence it became necessary for Zambia to:

• 1. Divest the British Sovereign of all rights in or in relation to the
Crown land;
• 2. Divest the Governor of the territory of all powers conferred
upon him by the Orders in Council and to confer them upon the
President; and
• 3. Divest the Secretary of State of all authority to give
instructions, directions or approvals as to the exercise of powers
under those Orders.
The Zambia (State land and Native Reserves)
Order, 1964

• The Zambia (State land and Native Reserves) Order, 1964

transferred to and vested in the President of the Republic of
Zambia all rights in or in relation to Crown lands or other
immovable property in Northern Rhodesia that were vested in the
British sovereign immediately before independence and all Native
reserves that were vested in the Secretary of State immediately
before Independence.
The Zambia (Trust land) Order 1964,

• This transferred to the president all native lands that was vested
in the Secretary of State immediately before independence.
 On 24th November 1964, Government appointed a Cabinet Land Policy Committee to look into the question of land.

Land Reforms in The First Republic-1964-1972

At Independence, Zambia retained both the Colonial categorization

of land and the dual land tenure system
A cabinet committee was appointed to look into matters of land reform

Some of the ToRs included

• examining land policy and administration of the land
Inherited at independence
• Examine land problems
• Submit recommendations to cabinet for consideration.
Problems Created By Absent LandLords.

• After independence, the country experienced a flight of white

settlers who abandoned and left their large tracts of land
unutilized and/or undeveloped.
• The Government could not legally acquire the land due to the
Constitutional provision under section 18 of the Independence
Constitution which provided for the protection against deprivation
of property.
Absent LandLords.

• The three categories of land continued to be in existence until

1995, when by virtue of the Lands Act of 1995, the Zambia (State
land and Reserves) Orders in Council, 1928 to 1964 and the Zambia
(Trust land) Orders 1947 to 1964, inter alia, were repealed and
reserves and Trust land were merged into one and became known
as Customary area.
The Lewanika Concessions – North Western Rhodesia

• North western Rhodesia had a special status within the the Northern
Rhodesian territory
• It was not affected by the Orders in Council.
• The Litunga and his Council had powers in all matters relating to land in
Barotse land.
• During the period 1900 – 1909, the BSA Co. obtained, inter alia, land
concessions from the Litunga Lubosi Lewanika, King of the Lozi people.
• The concessions included the present day southern province
• Last concession granted land rights to the company except Barotseland
itself.
The Western Province (Miscellaneous Provisions) Act, 1970

• In 1964 the Litunga was allowed to administer customary law in

land issues in Barotseland
• This changed in 1970 with the enactment of the Western province
(Miscellaneous Provisions) Act of 1970 when it was stated that
reserve lands and state land in the province should be under the
administration of the president.
• This was preceded by the 1969 referendum which abrogated the
Barotse Agreement.
The Lewanika Concessions – North Western
Rhodesia

• BSA allowed to alienate land

• The Company promised Lewanika British protection from outside
invasions, payment of mineral royalties, arms, guns, etc.
The North Eastern Rhodesia Concessions

• North Eastern Rhodesia was also acquired by the BSA Co through

concessions entered between it, through its emissaries, and the
local chiefs.
• In general, the chiefs accepted the British flag, placed themselves
under the protection of the Queen and granted the Company the
sole right to search and prospect for minerals.
OWNERSHIP OF LAND AND ITS LIMITS

• No one owns land absolutely.

• All laaaand in Rngland belongs to the crown
• In zambia all lane belongs to the president.
• Individuals occupying land, own estates, rights and interests in
land and not the land itself.
OWNERSHIP OF LAND AND ITS LIMITS

• They own rights to occupy and use the land for a defined period of
time.
• It is however usual in ordinary parlance or every day speech to
describe a person who has substantial rights in land as the owner
of land.
OWNERSHIP OF LAND AND ITS LIMITS

• It has beem observed that for practical purposes the holder of a

fee simple is today treated as being the equivalent of the owner of
the land but that the term ‘owner’ has not, except in common
parlance replaced the term holder of a fee simple.
• The word ‘owner’ or ‘ownership’ shall be used in this session
without losing sight of the legal position both in Zambia and
England.
OWNERSHIP OF LAND AND ITS LIMITS

• According to Dias, ownership consists of an innumerable number of

claims, liberties, powers and immunities with regard to the thing
owned]
• The right of ownership comprises benefits and burdens.
• The former consists of claims, liberties, powers and immunities,
but the advantages these give is curtailed by duties, liabilities and
disabilities.
OWNERSHIP OF LAND AND ITS LIMITS

• According to Salmond, ownership in its most comprehensive

signification, denotes the relation between a person and any right
that is vested in him. That which a man owns in this sense is in all
cases a right.
• Rights include rights to occupy, possess, use, abuse, use up, let
out, transfer in security, sell, exchange, gift, bequeath and
destroy
OWNERSHIP OF LAND AND ITS LIMITS

• The rights of ownership may be vested in a single person, or in two

or more persons either as joint tenants or owners, or as tenants in
common.
• Joint tenants possess the thing or property undivided but have
only one title to the property so that on the death of one joint
tenant the title accresces to the other or others until it is vested
in one who then becomes the sole owner.
OWNERSHIP OF LAND AND ITS LIMITS

• Tenants in common possess the property in undivided shares but

each has distinct title to a determinate share which on his death
passes to his representatives.
• Ownership may also be divided according to the time of its
enjoyment whether in possession or expectancy i.e present or Co-
ownership of property.
Ownership at Common Law

• At common law the owner or holder of the largest estate in land –

the fee simple estate - had extensive powers of control,
disposition and use and enjoyment of land in which his estate
subsisted.
Common Law Limitations or Restrictions on
Ownership

• Liability in Tort - In exercising rights over land a landowner must

not interfere with the legal rights of others.
• Liability in tort may arise:
• where a nuisance is caused, e.g. smell or noiseunder the rule in Rylands vs Fletcher,
e.g. where water escapes [1868] LR HL 330.
• under the rule in Rylands vs Fletcher[1868] LR HL 330.
e.g. where water escapes
Gold and Silver - At common law Gold and Silver belong to the
crown.
Treasure Trove

Treasure trove belongs to the crown at common law. A chattel or

object may amount to a treasure trove if:-
• it consists of gold and silver;
• it is hidden in or on the land deliberately and not merely lost; and
• the true owner is unknown
• In Attorney General of Duchy of Lancaster V Overton Limited
• a hoard of Roman Coins was held not to constitute treasure trove
because they contained only small amounts of silver.
Wild Animals

• A land owner has a qualified right to catch, kill, and appropriate

the animals on his land
Water rights

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

or percolates through his land in a defined channel
• In respect to percolating water the owner of land is at liberty to
draw water without regard to the neighboring owner.
Water rights

• A riparian owner (the owner of the land through which the water
flows) is entitled to the flow of water through his land unaltered
in quantity and quality, subject to the ordinary use by the upper
riparian owners and he is bound by a corresponding obligation to
the lower riparian owner.
Air space

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

passage through the airspace above the land in such circumstances
as to involve no interference with the reasonable use of it.