Land Law Module - Zambian Open University (PDF)

ZAMBIAN OPEN UNIVERSITY LAND LAW TEACHING MATERIAL THIRD EDITION, 2020 LECTURER: MR. FRIGHTONE SICHONE LLB, LLM, Dip. Legislative Drafting, MCIArb, AHCZ Revised by Lecturer: Mr. Collins Nkumbwa, Esq. CIP, LL.B, LL.M, AHCZ. 2023 This Module was prepared for the Zambian Open University by Mr. Frightone Sichone, LLB, LLM, Dip. Legislative Drafting, MCIArb, ASCZ and was revised in 2023 by Mr. Collins Nkumbwa, Esq, CIP, LL.B, LL.M, AHCZ. The Zambian Open University asserts copyright over all materials in this Module except where otherwise indicated. All rights reserved. No part of this work may be reproduced in any form, or by any means, without permission in writing from the University. We make every effort to contact copyright holders. If you think we have inadvertently used your copyright material, please let us know. 1 GENERAL COURSE OBJECTIVES AIM This course is designed to equip students with the knowledge of land law, thus, the principles and procedures governing the administration of land in Zambia. The course is intended to empower students with information about both the historical and present development of land law in Zambia. The students are expected to gain an understanding of land law and policy and how it affects the day to day lives of people. OBJECTIVES At the end of this course, students should be able to: a) Demonstrate an understanding of what land is; and b) Explain the doctrines of tenure and estates and give a critical analysis of their importance to land law. c) Analyse both Common law and Statutory limitations to the ownership of land and highlight why a person is usually said to only possess the land and not own it; and d) Appreciate the historical development of land law and understand its sources in Zambia; e) Understand and explain the differences between Fixtures and Fittings and highlight the tests employed to determine when a chattel becomes a fixture; and f) Understand Leases and licences and explain how different it is from a licence; g) Understand the general differences between legal and equitable rights or interests especially in relation to the remedies available to an aggrieved party; h) Analyse the Statute of Frauds with regard to land transactions and whether its aim of curing the problem of fraud in land transactions has been cured; i) Highlight the doctrine of part performance and relate it to the land law as it pertains to the normal day to day practice of the land law; and j) Explain the equitable doctrine or principle in Walsh v. Lonsdale and its application to land law; k) Explain the nature of Easements and Profits and what essentials must exist before they can exist; l) Highlight the fundamental similarities and differences between easements and profits; m) Explain what profits a’ prendre are and how they are distinguished from easements. 2 n) Demonstrate an understanding of what a mortgage is including its mode of creation and the various types of mortgages in existence o) Highlight the various principles affecting mortgages and show how equity has impacted the law of mortgages p) Explain what Concurrent interests are and highlight the various kinds of concurrent interests in land; q) Distinguish between Joint tenancy and Tenancy-in- common and demonstrate an understanding of how each of these can be determined; r) Appreciate the historical development of the land tenure system in Zambia; s) Analyse the legal system governing the process of land administration in Zambia; t) Appreciate the importance of urban and regional planning and land in the process of land alienation; u) Examine the relationship of the Landlord and Tenant; v) Demonstrate an understanding of the process and procedures in land alienation; w) Illustrate the significance and importance of Land registration; x) Highlight critical challenges in the system of land administration; and y) Formulate policy on land administration. 3 Contents GENERAL COURSE OBJECTIVES...................................................................2 LEGISLATION REFFERRED TO......................................................................9 CASE LAW REFERRED TO............................................................................10 FURTHER READINGS................................................................................... 13 CHAPTER 1:.................................................................................................. 14 GENERAL INTRODUCTION TO LAND LAW.................................................14 1.1 Introduction...................................................................................... 14 1.2 Objectives.......................................................................................... 14 1.3 Land law concerns itself with four things:........................................14 1.4 Resources.......................................................................................... 14 1.5 Keeping up to date............................................................................ 14 1.6 Preparing for the examination..........................................................15 1.7 The examination................................................................................15 CHAPTER 2:.................................................................................................. 16 TENURE AND ESTATE.................................................................................. 16 2.1 Introduction...................................................................................... 16 2.2 Objectives.......................................................................................... 16 2.4 Tenure............................................................................................... 17 2.4.1 Types of tenure...........................................................................17 2.5 Estates.............................................................................................. 18 2.5.2 Categories of Estates..................................................................18 2.6 Leasehold Estate...............................................................................19 CHAPTER 3:.................................................................................................. 21 LAND OWNERSHIP AND ITS LIMITS...........................................................21 3.1 Introduction...................................................................................... 21 3.2 Objectives.......................................................................................... 21 3.3 The Common Law Exceptions to ownership.....................................21 3.3.1 Gold and Silver........................................................................... 21 3.3.2 Wild Animals............................................................................... 21 4 3.3.3 Water.......................................................................................... 21 3.4 Liability in tort.................................................................................. 22 3.5 Limitation by Statutory Law.............................................................22 3.5.1 Mines and Minerals Development Act No. 11 of 2015...............22 3.5.2 Petroleum (Exploration and Production) Act N. 10, 2008..........23 1.5.3 Water Resources Management Act, Act No. 21 of 2011............23 1.5.4 Zambia Wildlife Act No. 14 of 2015............................................24 3.5.5 The Forests Act, No 4 of 2015....................................................25 3.5.7 The Lands Acquisition Act, Cap. 189 of the Laws of Zambia.........26 3.5.7 Lands Act (Chapter 184).............................................................26 CHAPTER 4:.................................................................................................. 28 FIXTURES AND FITTINGS............................................................................28 4.1 Introduction...................................................................................... 28 4.2 Objectives.......................................................................................... 28 4.3 Fixtures and Chattels........................................................................28 4.4 Degree of Annexation........................................................................29 4.5 Purpose of Annexation......................................................................29 4.6 Distinction between Fixtures and Chattels.......................................30 4.7 Common Law Exceptions to the General Rule..................................30 4.7.1 Landlord and Tenant..................................................................30 4.7.2 Mortgagor and Mortgagee.........................................................31 4.7.3 Vendor and Purchaser................................................................31 4.7.4 Executor and Devisee.................................................................32 4.7.5 Third Parties...............................................................................32 CHAPTER 5:.................................................................................................. 33 LEASES AND LICENCES.............................................................................. 33 5.1 Introduction...................................................................................... 33 5.2 Objectives.......................................................................................... 33 5.3 Leases............................................................................................... 33 5.3.1 Definition of a Lease...................................................................33 5.3.2 Essential elements of a Lease.....................................................33 5.3.3 Categories of Leases of Tenancies..............................................35 5.3.4 Implied Obligations of the Landlord...........................................36 5.3.5 Implied Obligations of the Tenant..............................................36 5.3.6 Methods of Determining a Lease................................................37 5.4 Licences............................................................................................ 37 5.4.1 Types of Licences........................................................................37 5.4.2 Estoppel Licence.........................................................................38 CHAPTER 6:.................................................................................................. 39 LAW AND EQUITY......................................................................................... 39 6.1 Introduction...................................................................................... 39 6.2 Objectives.......................................................................................... 39 6.3 Differences between Legal and Equitable Interests.........................39 6.4 Transmission of Title to Land............................................................40 6.5 The Statute of Frauds (1677)............................................................40 6.5.2 Analysis of section 4...................................................................40 6.6 The Doctrine of Part Performance....................................................41 6.7 The Doctrine in Walsh V. Lonsdale (1882) 21 Ch. 9.........................42 CHAPTER 7:.................................................................................................. 44 SERVITUDES (EASEMENTS AND PROFITS)................................................44 5 7.1 Introduction...................................................................................... 44 7.2 Objectives.......................................................................................... 44 7.3 Easements......................................................................................... 44 7.3.1 Nature of Easements..................................................................44 7.3.2 Essentials of an Easement..........................................................45 7.3.3 Distinction between Easements and Other Rights.....................46 7.3.4 Ways of acquiring an Easement..................................................47 7.3.5 Extinguishment of Easements....................................................48 7.4 Profits................................................................................................ 49 7.4.1 The Nature of Profits A’ Prendre................................................49 7.4.2 Classification of Profits A’ Prendre.............................................49 7.4.3 Acquisition of Profits...................................................................50 7.5 Distinguishing Easements from Profits.............................................50 CHAPTER 8:.................................................................................................. 52 MORTGAGES................................................................................................. 52 8.1 Introduction...................................................................................... 52 8.2 Objectives.......................................................................................... 52 8.3 Nature of Mortgages.........................................................................52 8.4 The Impact of equity on Common law..............................................53 8.5 Types of Mortgages...........................................................................53 8.5.1 Legal Mortgage..........................................................................53 8.5.2 Equitable Mortgage....................................................................54 8.6 Equitable Rights of the Mortgagor...................................................54 8.6.1 The equity of redemption............................................................54 8.6.2 Equitable right to redeem...........................................................55 8.6.3 Possession................................................................................... 55 8.6.4 Unconscionable Bargains and Collateral Advantages................56 8.7 Rights of the Mortgagee...................................................................58 8.7.1 Sale............................................................................................. 58 8.7.2 Foreclosure................................................................................. 58 8.7.3 Appointment of Receiver............................................................59 8.7.4 Possession................................................................................... 59 CHAPTER 9:.................................................................................................. 60 CONCURRENT INTERESTS IN LAND (CO-OWNERSHIP)...........................60 9.1 Introduction...................................................................................... 60 9.2 Objectives.......................................................................................... 60 9.3 Co-ownership.................................................................................... 60 9.4 Types of Co-Ownership.....................................................................60 9.4.1 Joint Tenants............................................................................... 60 9.4.2 Tenancy-In-Common...................................................................61 9.4.3 Differences between Joint Tenancy and Tenancy in Common....62 9.5 Rights of Co-owners..........................................................................62 9.6 Implied Trusts................................................................................... 62 CHAPTER 10:................................................................................................ 63 EVOLUTION OF THE LAND TENURE SYSTEM IN ZAMBIA........................63 10.1 Introduction...................................................................................... 63 10.2 Objectives.......................................................................................... 63 10.4 Evolution of the Land Administration...............................................63 10.4.1 Land administration between 1911 and 1924............................63 10.4.2 Land administration between 1924 and 1964............................63 10.4.3 Creation of Crown Lands and Native Reserves..........................64 6 10.4.5 Changes in terminology..............................................................67 10.5 Post Independence Land Administration..........................................67 10.6 Government’s Land Policy-1968-1975..............................................68 10.7 The Land Reforms of 1975................................................................68 10.8 Land Reforms in the Third Republic.................................................69 10.8.1 Creation of the Lands Act 1995..................................................69 CHAPTER 11:................................................................................................ 71 LAND ALIENATION UNDER LEASEHOLD (STATE LAND)..........................71 11.1 Introduction...................................................................................... 71 11.2 Objectives.......................................................................................... 71 11.3 Zambia’s land tenure system............................................................71 11.4 Administration and Control of Land..................................................72 11.5 Legal Framework.............................................................................. 72 11.5.1 Physical Planning Legislation.....................................................72 11.5.2 The Urban and Regional Planning Act, No. 3 of 2015................73 11.5.3 The Land Survey Act, Cap. 188..................................................75 11.5.4 Circular No. 1 of 1995................................................................77 CHAPTER 12:................................................................................................ 79 THE LANDS ACT, CAP. 184 OF THE LAWS OF ZAMBIA.............................79 12.1 Introduction...................................................................................... 79 12.2 Objectives.......................................................................................... 79 12.3 Eligibility to hold land in Zambia......................................................79 12.3.1 A Permanent residents in the Republic of Zambia.....................79 12.3.2 Investors..................................................................................... 81 12.3.3 President's consent in writing under his hand...........................82 12.3.4 A company registered under the Companies Act.......................82 12.3.5 Statutory Corporation created by an Act of Parliament.............82 12.3.6 Co-operative society...................................................................83 12.3.7 A body registered under the Land (Perpetual Succession) Act..83 12.3.8 Interest or right in question arises out of a lease, sub-lease, under-lease or a tenancy agreement......................................................84 12.3.9 Acquisition of an interest or right in land by inheritance upon death or right of survivorship or by operation of law.............................85 12.3.10 A Commercial Bank.................................................................85 12.3.11 Acquisition of land through a concession or right under the Zambia Wildlife Act................................................................................ 85 12.4 Conditions on alienation of land.......................................................85 12.4.1 Circumstances where land is granted without consideration....85 12.4.2 Conditions for assigning or transferring land............................86 12.4.3 Compliance with leasehold conditions........................................86 CHAPTER 13:................................................................................................ 89 INSTITUTIONAL FRAMEWORK FOR LAND ALIENATION UNDER LEASEHOLD (STATE LAND).........................................................................89 13.1 Introduction...................................................................................... 89 13.2 Objectives.......................................................................................... 89 13.3 Institutional Framework...................................................................89 13.3.1 The Ministry of Lands.................................................................89 13.3.2 The Lands Department...............................................................90 13.3.3 The Survey Department..............................................................91 13.3.4 The Lands and Deeds Registry Department...............................92 13.4 Local Authorities............................................................................... 92 7 13.5 Planning Authorities.........................................................................93 CHAPTER 14.................................................................................................. 94 LAND ALIENATION UNDER CUSTOMARY LAND........................................94 14.1 Introduction...................................................................................... 94 14.2 Objectives.......................................................................................... 94 14.3 Land ownership under customary tenure.........................................94 14.4 The Adjudication of land rights in Reserves and Trust land.............96 14.5 Status of customary tenure today.....................................................96 14.6 Institutional framework....................................................................97 14.7 Legal framework...............................................................................98 CHAPTER 15:.............................................................................................. 103 THE LANDLORD AND TENANT RELATIONSHIP.......................................103 15.1 Introduction.................................................................................... 103 15.2 Objectives........................................................................................ 103 15.3 The Rent Act................................................................................... 103 15.3.1 Salient Features of the Rent Act...............................................103 15.3.2 Analysis of the Act....................................................................108 15.3.3 Further reading: Cases Related to the Rent Act.......................108 15.4 The Landlord and Tenant (Business Premises) Act........................108 15.4.1 Salient features of the Act........................................................108 CHAPTER 16:.............................................................................................. 111 LAND REGISTRATION................................................................................ 111 16.1 Introduction.................................................................................... 111 16.2 Objectives........................................................................................ 111 16.3 Registration of Deeds......................................................................111 16.3.1 Registration of title...................................................................111 16.3.2 Rationale for title and deeds registration.................................111 16.3.3 Purpose of land registration.....................................................111 16.4 Land Registration in Zambia...........................................................112 16.4.1 Establishment of the Lands and Deeds Registry......................112 16.4.2 Documents required to be registered.......................................112 16.4.3 Registers................................................................................... 113 CHAPTER 17:.............................................................................................. 118 THE LANDS ACQUISITION ACT (CHAPTER 189)......................................118 17.1 Introduction.................................................................................... 118 17.2 Objectives........................................................................................ 118 17.3 Lands Acquisition Act.....................................................................118 17.3.1 Compulsory acquisition and property rights............................119 17.3.2 Compensation...........................................................................119 17.4 The Power of eminent Domain........................................................120 CHAPTER 18:.............................................................................................. 121 THE LANDS TRIBUNAL ACT, No. 39 OF 2010...........................................121 18.1 Introduction.................................................................................... 121 18.2 Objectives........................................................................................ 121 18.3 The Lands Tribunal Act...................................................................121 18.3.1 Powers of the Lands Tribunal...................................................121 18.3.2 Reliefs that may be sought.......................................................121 18.3.3 The Tribunal’s decision and its effect.......................................122 8 LEGISLATION REFFERRED TO 1. Barotse Agreement 1964 2. Circular No. 1 of 1985 3. Conveyancing Act of 1881 4. Crown Lands and Native Forests Act, No 4 of 2015 5. High Court Act, Chapter 27 6. Housing (Statutory and Improvement Areas) Act of 1975 7. Land (Conversion of Titles) Act 1975 8. Landlord and Tenant (Business Premises) Act, Cap 193 9. Lands Acquisition Act, Cap. 189 10. Lands Act (Chapter 184) 11. Local Courts Act, Chapter 29 12. Mines and Minerals Development Act No. 11 of 2015 13. Northern Rhodesia (Constitution) Order in Council in 1962 14. Northern Rhodesia (Crown lands and Native Reserves) orders in Council 1928 to 1963 15. Northern Rhodesia (Gwembe District) Order in council 1959 9 16. Northern Rhodesia Lands and Deeds Registry Ordinance (1944) 17. Northern Rhodesia (Native Trust Land) Orders in Council 1947 to 1963 18. Petroleum (Exploration and Production) Act No. 10, 2008 19. Rent Act Chapter 206 20. Reserves Order-in-Council of 1928 21. Subordinate Courts Act, Chapter 28 22. The Statute of Frauds (1677) 23. Town and Country Planning Act of 1962 24. Urban and Regional Planning Act, No. 3 of 2015 25. Water Resources Management Act, Act No. 21 of 2011 26. Western Province (Land and Miscellaneous Provisions) Act of 1970 27. Zambia Wildlife Act No. 14 of 2015 CASE LAW REFERRED TO 1. Albert Phiri Mupwayaa (Village headman) & Kamaljeet Singh v. Matthew Mbaimbi 2. Anort Kabwe Charity Mumba Kabwe v James Daka the Attorney General Albert Mbazima (2006) Z.R 12 3. Attorney-General v. Trustees of British Museum (1903) 2 Ch 598 4. Aubrey Kabwe (Suing in his capacity as Administrator of the Late Rosemary Mwanza) v Charles Wilson Nkhoma 2010/HJ/09 5. Bernstein of Leigh (Baron) v. Skyviews & General Limited (1978) QB 479 6. Binions v. Everness (1972) 2 All ER 70; Ch 359 10 7. Buckland v. Butterfield (1820) 2 Brod. & B. 54 8. Bull v. Bull (1955) 1 All ER 253 9. Bradley v. Carritt (1903) A.C 253 10. Brusewitz Vs Brown (1922) N.Z.L.R 1106 11. City of London Building Society v. Flegg (1987) 2 WLR 1266 12. Copeland v. Greenhalf (1952) Ch 488. 13. Credit Lyonnais Bank Nederland v Burch (1997) 1 All E.R 144 14. D. Hayton, Megarry’s Manual of the Law of Real Property, 6 ed., London: Stevens & Sons, 1982 th 15. David Allen & Sons v. King & Bill Posting Co. Ltd (1916) 16. David Howes Daniel Simuloka Vivian Kanondo Walker Miyoba Janet B Musunga A.B. Mbata Constatine Chimuka Alfred Hanankuni Stemon Lumamba v Betty Butts Carbin (sued in her capacity as Trustee of the Estate of the late Daisy Butts) Supreme Court judgment number 5 of 2012. 17. David Nzooma Lumanyenda & Goodwins Kafuko Muzumbwa v. Chief Chamuka & Kabwe Rural District Council & Zambia Consolidated Copper Mines Limited [1988-1989] ZR 194 18. Drake v. M. B. L. Mahtani and Another (1985) ZR 236 (S.C.) 19. Duke of Sutherland v. Headnote (1892) 1 Ch 475 20. Re Ellenborough Park (1955) 2 All ER 38 21. Elitestone Limited vs. Morris 1 WLR 687 22. Elwes v. Maw (1802) 3 East 38 23. Errington v. Errington (1952) 1 KB 290; 1 All ER 149 24. Escalus Properties Limited vs. Robinson QB 231 25. Fairclough v Swan Breweries Co Ltd (1912) A.C.565 26. Four Maids Ltd Vs Daudley Marshall properties Limited (1979) ch.317 27. Gibbs v. Messer (1881) AC 248 28. Hill v. Tupper (1863) All ER 696; Exch 217 29. Holland v. Hodgson (1872) L. R. 7 C. p.328 30. Humphrey Banda v. Chongwe District Council, Mphande and Others (2008) Z.R. 96 Vol. 1 (SC) 31. Hurst v. Picture Theatres Limited (1915) 1 KB 1; (1914-15) All ER 836 32. Ibrahim Jasat v. Muhammed Wali Adam Patel (1978) ZR 208 33. Jean Mwamba Mpashi v. Avondale Housing Project (1988 - 1989) Z.R. 140 34. Krige & Another v. Christian Council of Zambia, Z.R 152 35. Lace v. Chantler (1945) 44 KB 368 36. Leigh v. Taylor (1902) AC 157 11 37. Lenton Holdings Limited v. Moyo Z.R. p.55 38. Lyon & Co v. London City & Midland Bank (1903) 2 KB 135 39. Madison v. Alderson 8 App. Cas 467 40. Magic Carpet Travel & Tours v. Zambia National Commercial Bank Limited (1999) ZR 61 41. Manning v. Wasdale (1836) 5 A. & E. 758 42. Mark Chona v. Ever Green Farms Limited (1996/HP/2727)(Unreported) 43. Mason v. Clarke (1955) A.C. 788 44. Mason v. Hill (1833) 5 B. & Ad. 1 45. May Vijaygiri Goswami, Dr. Mohammed Anwar Essa v. Commissioner of Lands SCZ/3/2001 46. Mobil Oil Zambia Limited v. Loto Petroleum Distributors, Z.R 336Lowe v. J. W. Ashmore Ltd (1971) Ch 545 47. Musingah v. Daka (1974) Z.R. 37 48. Mususu Kalenga Building Limited, Winnie Kalenga and Richmans Money Lenders Enterprises S.C.Z. Judgment No. 4 of 1999 49. Multiservice Book Binding Ltd Vs Marden (1979) Ch. 84 at 110 50. Mobil Zambia Limited v. Loto Petroleum Distributors Limited (1977) ZR 336 51. National Housing Authority v. Siamiaze and Another 52. National Hotels Development Corporation T/A Fairview Hotel v. Ebrahim Motala SCZ/10/2002 53. Nip v. Zambia State Insurance Corporation Limited 54. Noakes and Co. Ltd v. Rice (1902) A.C. 24 55. Patel v. Ishmail NRLR 563 56. Philips v. Lamdin (1949) Ch. D 57. Phipps v. Pears (1965) 1 QB 76 58. Prest v Secretary of State for Wales 81 L.G.R. 193 59. Raphael Ackim Namung'andu v. Lusaka City Council (1978) Z.R. 358 60. Reeve v Lisle (1902) A.C. 461 61. Reynolds v. Ashby & Sons (1904) AC 466 62. Rhodesia Wattle Company Limited v. Taziwa & Others Rhodesia & Nyasaland Law Reports, p.656 63. Roe v. Siddons (1888) 22 Q BD 224 64. Ropaigealach Vs Barclays Bank PLC (1999) 4 All. E.R 235 65. Royco Homes Limited vs. Eatownwill Construction Limited Ch. 276 at 289 66. Russel v. Russel in 1783 67. Rylands v. Flether (1861-73) All ER 1 68. Santley v. Wilde (1899) Ch. 474 12 69. Samuel v Jarrah Timber and Wood Paving Corporation Ltd (1904) A.C 323 70. Siwale & Six Others v. Siwale 71. Smith v. City Petroleum Co. Ltd (1940) 1 All ER 260 72. Smith v. Marrable (1843) 11 M&W 5 73. Re: Special case submitted by the Registrar of Lands and Deeds 5 NRLR 475. 74. Steadman v. Steadman AC 536 75. Street v. Mountford A.C. 809; 2 All ER 289 76. Sundi v. Ravalia, [1949-54] NRLR 345 77. Turner v. Turner (1975) 3 All ER 776; 1 WLR 1346 78. Vaudeville Electric Cinema v. Muriset (1923) 2 Ch. D 74 79. Veralli v. Great Yarmouth Council (1981) QB 202; All ER 839; WLR 258 80. Wakeham v. Mackenzie 2 All ER 783 81. Walsh V. Lonsdale (1882) 21 Ch. 9 82. In Re Whaley (1908) 1 Ch. D 15 83. William Jacks and Company (Z) Limited v. O'Connor (In his capacity as Registrar of Lands and Deeds), Construction and Investment Holdings Limited (1967) Z.R. 109 84. Williams & Glyn’s Bank v. Boland AC 487 85. Willmott v. Barber (1880) 15 Ch.96 86. Ward v. Casale & Burney, 5NRLR 87. Winter Garden Limited v. Millennium Products Limited (1948) A. C. 173 88. Zambia National Holdings Limited & Another v The Attorney General (1993 – 1994) Z.R. 115 89. Zimco Properties v. Hickey Studios (1988 - 1989) Z.R. 181 13 FURTHER READINGS Dale P., and McLaughlin., Land administration, Oxford university press, London, 1999 Megarry, R.E and Wade, The Law of Real Property 6 th edition Sweet and Maxwell, London, 2001 Mvunga, M.P., Land law and policy in Zambia, Mambo press, Gweru, Zimbabwe, 1982 Mvunga M.P., The colonial foundations of Zambia’s Land Tenure System, KKF, Lusaka, 1980 Northern Rhodesia (Crown Land and Native Reserves) Order-in- Council 1928-1964 Northern Rhodesia (Native Trust Land) Order-in Council 1947-1964 Report of the Johnson Land Commission, Republic of Zambia, Lusaka,1967 Report of the Sakala Land Commission, Republic of Zambia, Lusaka, 1982 14 Riddall, J.G., Introduction to Land Law, Butterworths, London, 1974 The Johnson Lands Commission Report, Government Printers, 1967 White, C. M. N., “Factors Determining the Content of African Land Tenure Systems in Northern Rhodesia” in African agrarian systems, D. Biebuyck (ed), Oxford University Press, 1963 CHAPTER 1: GENERAL INTRODUCTION TO LAND LAW 1.1 Introduction Land is generally described as signifying the ground or soils including buildings, structures and houses comprehending everything of a permanent and substantial nature attached to the soil. The definition is therefore includes both the soil and what is attached to the soil. This means that that whatever is attached to the land becomes part of the land. This is referred to as qiuc quid plantatur solo solo cedit. 1.2 Objectives At the end of this Chapter, students should be able to: a) Demonstrate an understanding of what land is; b) Give a bird’s eye view of what land law is; and c) Understand the four elements of land law. 15 1.3 Land law concerns itself with four things: (i) First, it has to do with ownership which specifically deals with title to the land, what the land is physically composed of, as well as the periods of time for which the land may be granted by one person to another. (ii) Secondly, land law concerns itself with the interests in land held by persons other than the owner and whether such interests are binding on a subsequent holder of the land. Examples of such interests include mortgages, easements and tenancies. It is thus concerned with rights and interests in land as well as liabilities that may attach to ownership of land. (iii) Thirdly, land law is about restrictions placed on certain forms of dispositions and use of land due to public policy. For example, because of the principle that land should be freely transferable, the law does not permit a grant to be made to another person subject to a condition that he never sells it. (iv) Fourthly, Land law is associated with Conveyancing. Conveyancing is concerned largely with the acquisition and transfer of estates and interests in land. Generally, it may be said that land law is more concerned with defining the various estates and interests which make up the ownership of land, while conveyancing is more concerned with procedures whereby the owners of those estates and interests may dispose them, e.g. by sale, and what the purchaser must do to get a good title to what he is buying. The legal machinery therefore ensures that land transactions are conducted through a well-designed legal and institutional framework. 1.4 Resources Land law resources include this Module, other reading material as well as Statutes and case law. The Module is a useful starting point but the student must also read the recommended resources which complement the Module. 1.5 Keeping up to date Land law is a developing discipline which entails that the student must keep abreast with any further changes in the law. This Module was last updated in 2020 during which time there were proposals to change the land policy in Zambia. It remains to be seen how far the reforms will progress and whether they will entail significant changes to the land law in Zambia. 16 1.6 Preparing for the examination Your understanding of land law in Zambia will be tested by two essay questions and an examination. The examination format may change but the examination always has a compulsory question and a choice of three other questions from a selection of five questions. This course does not require knowledge of other material as it does not require you to have sat for an examination for another course. 1.7 The examination You are advised to carefully read the instructions on the examination paper as it will guide you on how to answer the examination questions. The questions will be based on material in this Module and the examination will be three hours long. The University will be able to guide whether you are allowed to come to the examination with any relevant Statutes on land law. In an event that you are allowed to do so, the Statutes should be clean and unmarked. 17 CHAPTER 2: TENURE AND ESTATE 2.1 Introduction The Zambian system of land administration has its historical foundation based on the English land law. In England, although in practice land is commonly and correctly described as owned by its various proprietors, English land law still retains its original basis, that all land in England is owned by the Crown. In England, all land is held of the lord and there is no allodial land. This principle applies also in Zambia where all land in the country is vested in the President. The aim of this chapter therefore, is to introduce students to the historical development of land law from the English perspective. In this regard, the doctrines of tenure and estate that form the basis of land law will be discussed. 2.2 Objectives At the end of this Chapter, students should be able to: a) Appreciate the historical development of land law and understand its sources; b) Understand the doctrine of tenure and estate and give a critical analysis of their importance to the land law; and c) Analyse both common law and statutory limitations to the ownership of land and highlight why a person is usually said to only possess the land and not own it. 2.3 The Doctrine of Tenure and Estate There are two fundamental doctrines in land law. These are – a) The doctrine of Tenure – all land is held of the Crown either directly or indirectly in one or other of the various tenures; and b) The doctrine of Estate – land held in tenure is also held for an estate, that is to say, for some period of time. In short, the word “tenure” answers the question “upon what terms is land held?” while the word estate answers the question “for how long is it held?” The doctrines of tenure and estate have their origins in the Norman conquest of 1066 when King William of Normandy invaded England. William I regarded the whole of England as his by conquest. To reward his followers and those of the English who submitted to him, he granted and confirmed certain which were however held of him as overlord. It is against this background that all land in England was said to be owned by the Crown. The Crown used the land to reward his soldiers and his followers who in turn formed themselves estates in the defeated 18 kingdoms. The Crown granted lands to his followers upon certain conditions. In return for a grant of land, a tenant was required to render certain services to the king. Various forms of service existed but the most common service entailed the provision of a certain number of knights for a certain number of days in each year who made up the largest part of the king’s army. Thus, by means of granting land, the king was able to provide himself with the greater part of his army, to fortify his castles, to fill the great offices of state, to provide for the principal servants of his household and to obtain supplies of various provisions. 2.4 Tenure Tenure refers to the conditions under which land is held, and furthermore that the land is held in return for certain services by the tenant to his lord. The doctrine of tenure encompasses the conditions, rules and regulations upon which land is held. All land in England was held of the crown directly or indirectly. In this arrangement, land was not owned by anyone but they merely had an interest in it. This arrangement was structured like a pyramid where the one who held directly of the crown was a tenant-in-chief and those who held under him were mesne lords and so on till the person at the bottom of the pyramid. This process was known as Subinfeudation- not all held directly from the king. Thus, land law from the English conquest remained largely feudalistic. Feudalism implies subordination; it means that one man is deliberately made inferior to another. The effect of feudalism was that land became the exclusive bond of union between men. Individual or communal landownership was destroyed. 2.4.1 Types of tenure With the passage of time, tenures came to be classified according to the kind of service rendered to the lord. They varied from military tenure and agricultural tenure to spiritual tenure such as praying for the king’s soul. On the death of the tenant or failure to perform the services required, it meant that the land escheated to the lord above him. Escheat therefore could occur as a result of failure of blood where a person had no heir to inherit land after his death. The difference between free tenure and non-free tenure was that under the former, the nature of the duties was fixed and thus a tenant knew exactly what was expected of him unlike in the latter where a tenant would be called upon to perform a variety of services depending on the needs and requirements of the overlord. 19 i) Knight Service This was tenure by which a man was obliged to render military services in return for the land that he held. This was more common with tenants-in-chief who held directly of the king as distinct from sub-tenants who owed their position to the practice of subinfeudation. ii) Tenure by Sergeanty This kind of tenure required the tenant to perform services of an essentially personal nature and was thus designed to supply the necessities of life. This involved carrying the banner of the king or might even be his marshal or butler. The nature of personal service that might be required of such a tenant was endless. Such duties were regarded as conferring honour and dignity and for this reason outlasted the tenure itself. iii) Socage tenure Socage was non-military in nature and was free from the worst features of knight service. It became the great residuary tenure and included every kind of tenure that was not knight or sergeant. It involved some service which was absolutely certain and fixed and which in the vast majority of cases involved the form of a money payment. In 1290, by the Statute Quia Emptores, subinfeudation was abolished and in 1660, the Tenure Abolishment Act was passed which had the effect of abolishing all forms of tenure except freehold tenure. However, despite the sweeping changes made by statute, “the fundamental principles of the law of ownership of land have remained the same. Land is still the object of feudal tenure; the Sovereign remains the lord paramount of all the land within the realm; every piece of land is still held of some lord…….and the greatest interest which any subject can have in land is still an estate in fee simple and no more.” (Megarry and Wade, 2001:36) 2.5 Estates The term “estate” indicates an interest in land of some particular duration. Estate has been defined as the duration of a tenancy (in other words, it is the maximum time before which the tenancy must come to an end) and this is termed the estate for which the tenant holds the land. This implies the holding of an interest in land for a specified period of time. In simple terms it is the answer to the question: for how long is the land held? 20 In the first instance, estates vary in size according to the time for which they are to endure. On this basis, they are classified as ‘estates of freehold’ and ‘estates less than freehold.’ In the second instance, several different persons may simultaneously own distinct and separate estates in the same piece of land. One of the characteristics of the freehold tenants was that the time for which they were entitled to hold the land was not fixed and certain. They invariably held either for life or for some other space of time dependent upon an event that might not happen within a lifetime, and it was this uncertainty of duration that gradually came to be regarded as the essential feature of a freehold estate. Just as there have been various forms of tenure, so also there are various forms of estates. They vary according to the duration for which land can be granted. 2.5.2 Categories of Estates 2.5.2.1 The Fee Simple Originally, this was an estate which endured for as long as the original tenant or any of his heirs (blood relations, and their heirs, and so on) survived. In this regard, the fee simple was virtually perpetual. It would terminate only if the tenant for the time being died leaving no heir, when it would escheat to his lord. The fee simple is the greatest interest and can be inherited on the death on holder. It is the closest that estates can get to absolute ownership. The word fee denotes its inheritability, and the word simple indicates that it is inheritable by the general heirs of the owner for the time being whether they be ascendants, descendants or collateral. However, land escheats to the Crown when no heir is available to inherit the land. 2.5.2.2 The Fee Tail This is an estate which continued for so long as the original tenant or any of his lineal descendants survived. Thus if the original tenant died leaving no relatives except a brother, a fee tail would come to an end. Fee tail was inheritable only by the fee specified descendants of the original grantee. It was descendible only to his lineal issue and not to his collateral relatives. Thus, it was inferior to the fee simple in the sense that it had not as great a capacity for perpetual existence. The classic formula for its creation is- ‘to A. and to the heirs of his body’. For the fee tail, only issue can inherit. A fee tail could further be restricted in terms of the sexes. Thus, it could be so designed that only male heirs could inherit. This would, therefore be a fee tail male. The case would be the same 21 for females where, in a fee tail female, only female heirs could inherit the property. However, it was possible, in a procedure known as barring the fee tail, to convert it to a full fee simple estate. The fee tail estate was abolished in Northern Rhodesia (now Zambia) in 1944 by the Lands and Deeds Registry Ordinance and was thus converted into a fee simple estate. 2.5.2.3 Life Estate As its name indicates, this lasted for life only. The name “life estate” usually denotes that the measuring life was that of the tenant himself e.g, when the grant was made to A for life. The form of life estate where the measuring of life was that of some other person was known as estate pur autre vie. (for the life of another e.g, to A for as long as B lives). The condition here is the duration of the life of the other. The fee simple, the fee tail and the life estate constitute the three freehold estates. A common feature of all estates of freehold was that the duration of the estate, though limited, was uncertain. Nobody could say when the death would occur of a particular person and all his future heirs, or of a person and his descendants, or of a person alone. Nor was it certain that the duration would be perpetual. They are freehold estates because originally only a person who held by a free tenure could hold one of these estates in land. Freehold estates of whatever form have a common golden thread running through them. They are inheritable, more like customary tenure, as long as there’s someone to inherit the land. The property will only escheat if there is a failure of heirs. Another common feature is that they are all of indefinite duration as there is no way of knowing at the beginning of the grant when the estate will end. 2.6 Leasehold Estate The leasehold estate was not originally recognised as an interest in land. The three estates of freehold discussed earlier were the only estates recognised and protected at common law. With time, a lease acquired two important characteristics of an estate in land- first, it indicated the duration of the holder’s interest in the land; and, secondly, the holder was able to recover the land from anyone who dispossessed him. This being so, it was no longer possible to deny that a lease was a true estate in land, and leases were therefore admitted to the company of estates, but owing to the late date at which it admitted the status of estate, it was set apart from the old freehold estates and placed in a category of its own. To distinguish it from the old freehold estates, the lease was classified as a non-freehold estate. It can be seen that Tenure was designed to meet the needs of 22 feudalism. Feudalism was a system of government through the agency of landholders. So closely did the relationship of lessor and lessee resemble that of lord and tenant as it existed in the context of tenures that, by the time a lease had come to be accepted as a true estate, it had also been accepted that leasehold constituted a form of tenure. It was therefore regarded both as tenure and an estate in land. There is nothing unreasonable in this, since a lease had the characteristics of both tenure and an estate. Tenure is concerned with the holding of land from a superior lord in return for certain services while estate is concerned with the duration of the holder’s interest. Leaseholds have, however, been regarded primarily as a form of estate, and in the classification of tenures and estates, it is among the latter that leaseholds appear. This is why the only form of tenure existing under English law is socage tenure. 2.7 Land tenure system applicable in Zambia The system of landholding in Zambia today is based on Leasehold and Customary tenure. The system of life estates, and freehold tenure in Zambia was abolished in 1975 by the passage of the Land (Conversion of Titles) Act in that very year. Therefore, since freehold estates do not exist in Zambia anymore, the only estate in existence is the leasehold estate which requires a service in the form of the payment of a sum of money as ground rent. This is the most common condition found in all leases in Zambia. 23 CHAPTER 3: LAND OWNERSHIP AND ITS LIMITS 3.1 Introduction In England, all land is held of a lord. This is the position at common law. Although in practice land is commonly, and correctly described as owned by its various proprietors, English land law still retains its original basis, that all land in England is owned by the Crown. In understanding the extent to which land can be said to be owned by the Crown or a proprietor, this chapter explains what land ownership is and the limitation imposed on the land ‘owner’ both at common law and under the Zambian statutory law. 3.2 Objectives At the end of this Chapter, students should be able to: a) Understand the limits to land ownership; b) Explain the common law exceptions to land ownership; and c) Highlight the tortuous and statutory limitations to land ownership. 3.3 The Common Law Exceptions to ownership The Latin maxim ‘cuius est solum eius usque ad caelum ad inferos’ which means that ‘he who owns the surface of the land also owns everything up to the heavens and down to the depths of the earth’ describes the general rule under the common law position relating to the ownership of land. This general rule which prima facie includes minerals, trees and rivers is however wrought with exceptions both at common law and by Statute, thus qualifying the absolute freedom a landholder has to own land. The common law exceptions to the general rule of ownership of land include gold and silver, wild animals, water and liability under tort. These will be discussed in turn. 24 3.3.1 Gold and Silver At common law, all the gold and silver existing on a piece of land were vested in the Crown and therefore, belonged to the Crown. Gold and silver was known as a Treasure Trove if it satisfied certain basic conditions. In the case of Attorney- General v. Trustees of British Museum (1903) 2 Ch 598, a hoard of gold Norse treasures was held to be a treasure trove. A landowner cannot therefore own the gold and silver existing on his land as this was the property of the Crown. 3.3.2 Wild Animals These similarly belonged to the Crown at common law and were thus, not capable of being owned. They were res nullius or things without an owner. A landowner, however, had a limited right to appropriate an animal on his land once it has been caught even by a stranger since they become, by the process of appropriation, the property of the owner of the land. 3.3.3 Water A landowner has no property in water, on his land, which flows from a defined channel except percolated water without any outlet. It encompasses riparian rights whereby a riparian owner has the right to receive the volume of water unaltered both in quality and quantity. An upper riparian owner is therefore not allowed to discharge any effluence detrimental to lower riparian owners. He is, however, free to enjoy fishing rights in non-tidal waters. A riparian owner is also expected to use the water reasonably otherwise he may be susceptible to an injunction from an aggrieved party. 3.4 Liability in tort A landowner may be liable in tort for injuries caused to third parties by his acts and omissions. Thus, tortuous liability may exist for a landowner under the rule in Rylands v. Flether (1861- 73) All ER 1 where a landowner was held to be tortuously liable when he allowed water in a reservoir on his land to escape and consequently caused damage to the adjacent land owners. The brief facts of the case were that Rylands and Fletcher owned neighbouring properties. Rylands owned a mill and needed to power it while Flether owned a mine. He therefore built a water reservoir on his land and assigned the work to an independent contractor to build it. However, the independent contractor was negligent in not properly sealing disused mines leading to Fletcher’s mine and the shafts were flooded, causing heavy loss to Fletcher. Rylands was found liable for the damage caused as he was found to have brought something on his land, the use of land was a non-natural use, the thing was likely to do 25 mischief if it escaped and the thing did escape and caused damage. In the Zambian case of National Hotels Development Corporation T/A Fairview Hotel v. Ebrahim Motala SCZ/10/2002, the appellant and respondent were neighbours separated by a road. The respondent complained that the playing of loud music by the Appellant on its terraces overlooking his house late into the night disturbed his quiet enjoyment of his house. The Court below found the Appellant liable in tort hence it appealed. The Respondent obtained an injunction against the Appellant. It was held that in striving to strike a balance, music was to be played at a reasonable level hence the injunction ordered, though upheld, was to be rephrased in order to best accommodate the rights of both parties to the enjoyment of their land. 3.5 Limitation by Statutory Law Apart from the common law, there are also statutory modifications or limitations on ownership and enjoyment of land in Zambia. Some of the Acts that specifically deal with limitations in the ownership of land by a landholder are the following: 3.5.1 Mines and Minerals Development Act No. 11 of 2015 All minerals in the republic of Zambia are vested in the President. Section 3 (1) of the Act provides “All rights of ownership in, searching for, mining and disposing of, minerals wheresoever located in the Republic vest in the President on behalf of the Republic.” This section has effect notwithstanding any right, title or interest which a person may possess in or over the soil in, on or under which minerals are found. The Act has provided for principles which shall apply to mining and mineral development in the country. Section 4 of the Act provides that; a) mineral resources are a non-renewable resource and shall be conserved, developed and used prudently, taking into account the needs of the present and future generations; b) mineral resources shall be explored and developed in a manner that promotes and contributes to socio-economic development and in accordance with international conventions to which Zambia is a party; c) the exploitation of minerals shall ensure safety, health and environmental protection; d) wasteful mining practices shall be avoided so as to promote sustainable development and prevent adverse environmental effects; 26 e) citizens shall have equitable access to mineral resources and benefit from mineral resources development; and f) development of local communities in areas surrounding the mining area based on prioritisation of community needs, health and safety. 3.5.2 Petroleum (Exploration and Production) Act N. 10, 2008 Section 4 of this Act provides that the entire property in and control over petroleum and accompanying substances, in whatever physical state, located on any land in Zambia is hereby vested exclusively in the President on behalf of the State. Notwithstanding the provisions of subsection (1), a licence issued under this Act may provide for a person to acquire property in title to or control over any petroleum within the Republic. The provisions of subsections (1) and (2) shall have effect notwithstanding any rights which any other person may possess in or over the soil on or under which petroleum is discovered. 1.5.3 Water Resources Management Act, Act No. 21 of 2011 All water in Zambia is vested in the President. Section 3 of the Act provides that, “Subject to this Act and notwithstanding any other law, instrument or document, all water, in its natural state, in Zambia vests in the President and is held by the President on behalf and benefit of the people of Zambia.” Section 4 of the Act provides that “Notwithstanding any other law, a person shall not own any water, in its natural state, in Zambia and no property in such water shall be acquired.” Section 5 (1) provides that after the commencement of this Act and notwithstanding when any existing entitlement to use water, in its natural state, commenced but subject to the Second Schedule-(a) no entitlement shall exist to use that water except as provided under this Act; and allocation of that water for various purpose shall be in accordance with this Act; The Act has established the Water Resources Management Board, which has the responsibility to ensure that traditional practices as recognized in customary areas and which are beneficial to water resource management are taken into account in the management of water resources. The principles governing the management of water resources in Zambia are enshrined under section 6 of the Act and provides as follows: a) water resources shall be managed in an integrated and sustainable manner; 27 b) water is a basic human need and as such domestic and non- commercial needs shall enjoy priority of allocation use; c) the environmental is a water user and shall enjoy second priority of allocation use to the human need; d) there shall be equitable access to water; e) water resources shall be managed in such a manner as will help combat malaria and other waterborne diseases in order to ensure access to safe water; f) water shall be use efficiently, sustainably and beneficially in the public interest; g) water has an economic and a social value and this shall be reflected in its use, but all document ad non-commercial use of water shall not be required to obtain a water permit; h) water has an economic value and the cost of facilitating its use has a significant administrative cost element and this shall be reflected in the charges for water permits for the rights to use water for economic purposes; i) there shall be no private ownership of water and no authorization for its use shall be in perpetuity; j) the State shall be the trustee of the nation’s water resources and shall ensure that water is allocated equitably, protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, in the public interest while promoting environmental and social values and protecting Zambia’s territorial sovereignty; k) there shall be equity between both gender in accessing water resources and, in particular, women shall be empowered and fully participate in issues and decisions relating to the sustainable development of water resources and, specifically in the use of water; l) efforts to create wealth shall be reflected in all decisions made in relation to the use of water; m) water resources management and planning shall contribute to the eradication of hunger and poverty and this shall be reflected in all decisions made in relation to the use of water, in particular, the right to use water for domestic and non- commercial purposes shall not be under any permit or attract any charge for its use; n) location of a water resource on land shall not itself confer preferential rights to its use; o) the basic management unit shall be the catchment in recognition of the unity of the hydrological cycle; p) Zambia’s water resources shall be protected, used, developed, conserved, managed and controlled sustainably, beneficially, reasonably and equitably for the needs of the present and future generations; and q) the management, development and utilization of water resources shall take into account climate change adaptation. 28 1.5.4 Zambia Wildlife Act No. 14 of 2015 The law on Wild animals vests all animals in the President. The Zambia Wildlife Act under section 3. (1) provides that “Subject to the other provisions of this Act, the absolute ownership of every wild animal within Zambia is vested in the President on behalf of the Republic. The Act however, creates exceptions that— (a) where a wild animal, which is not a game animal or protected animal, is captured or killed or reduced into possession by a person in accordance with this Act, the absolute ownership of that animal or the carcass of that animal is transferred to and vested in that person; (b) where a game animal or protected animal is lawfully captured or killed or reduced into possession by a person in terms of a hunting licence, capture permit, hunting concession or under an authority granted under this Act, the absolute ownership of the game animal or protected animal or the carcass or a trophy of that animal is, subject to the other provisions of this Act and to the terms and conditions of the hunting licence, capture permit, hunting concession or authority, as the case may be, transferred to, and shall vest in, the licensee, permit holder, concessionaire or the person so authorised; and (c) subject to such regulations as the Minister may prescribe on the advice of the Director, where a wild animal is found resident on any land, the Director may grant the right to harvest the wild animal to the owner of the land.” The principles of wildlife conservation and management are provided for in the law. Section 4 states that the following principles shall apply to wildlife conservation and management — (a) wildlife shall be conserved and managed as an asset for present and future generations and to achieve economic growth; (b) wildlife utilisation, management and conservation shall protect biological diversity, preserve the integrity and ensure the sustainability of the ecosystem and biological diversity; (c) wildlife conservation and management shall be integrated, because all the elements of the environment are linked and inter-related; (d) the equitable and effective participation of local communities and traditional leaders shall be promoted taking into account their interest and needs; 29 (e) wildlife utilisation shall promote equitable access to, and fair distribution of, the economic, social, health and environmental benefits derived from wildlife; (f) wildlife utilisation shall promote opportunities and benefits for sustainable development and ensure the potential yield of economic, social and environmental benefits of wildlife conservation and management; (g) global and international responsibilities in wildlife conservation and management shall be discharged in the national interest; and (h) traditional knowledge shall be recognised in wildlife management and incorporated in management plans. This entails therefore, that a game animal or protected animal still remains the property of the State even after its death. One possible reason for this is that it still has a lot of value as for example an elephant and its ivory tusks. The mischief being avoided by this Act is abuse by poachers who would go about secretly killing these protected animals and then openly claiming the carcases which would no longer belong to the State but were capable of private ownership. 3.5.5 The Forests Act, No 4 of 2015 The ownership of all trees standing on, and all forest produce derived from, customary areas, National Forests, Local Forests, State Land, botanical reserves and open areas is vested in the President, on behalf of the Republic, until lawfully transferred or assigned under this Act or any other written law. In managing Forests or trees, the law has imposed delegated the powers to the Minister or Director responsible for forests. Section 8 of the Act provides that “the Minister, Director or persons to whom the Minister or Director has delegated any powers and functions under this Act, shall, in implementing this Act, have regard to; a) the principle that forests and trees shall be managed as an asset for succeeding generations; b) the need to apply the precautionary principle to the development, management, utilisation and conservation of forest ecosystems, biological diversity and habitats, taking into account the best scientific evidence available; c) the development, management, utilisation and conservation of forests and trees to achieve a sound ecological balance; d) the need to achieve optimum utilisation and ecologically sustainable development and management of forest ecosystems, biological diversity and habitats; e) the need to conserve forests and trees as living resources for both present and future generations and to achieve 30 economic growth, human resource development and employment creation; f) the need to protect biological diversity in forest areas and protect the ecosystem as a whole, including species which are not targeted for exploitation; g) the need to sustain the potential yield of economic, social and environmental benefits derived from forests; h) the need to promote the fair distribution of the economic, social health and environmental benefits derived from forests; i) the need to minimise pollution of natural resources, especially forests, land and waters; j) the need to develop and manage forests so as to conserve heritage resources and promote aesthetic and cultural values; k) the need to achieve to the extent practicable a broad and accountable participation in the decision-making processes provided for in this Act; and l) the implementation of international agreements to which Zambia is party. 3.5.6 The Urban and Regional Planning Act, No. 3 of 2015 The Urban and Regional Planning Act limits the right of ownership of land by securing that any major change in the use of land must be approved. This Act was passed in 2015 and is meant to provide for development, planning and administration principles, standards and requirements for urban and regional planning processes and systems. The Act highlights the principles that apply to planning frameworks, systems and processes at the national, regional, provincial, district and local levels which are to be considered when undertaking land use planning in the Republic. 3.5.7 The Lands Acquisition Act, Cap. 189 of the Laws of Zambia Common law treated the right to property as sacrosanct, as it was considered to be almost as inviolable as the right to personal liberty. Although the Constitution of Zambia entrenches the right to property in the Bill of Rights, there are exceptions which have been made by statute which have empowered public authorities and other bodies to acquire private land, and even other property, compulsorily. Section 3 of the Lands Acquisition Act empowers the President, in whom land is vested, to compulsorily acquire any property of any description wherever he is of the opinion that it is desirable or expedient in the interests of the Republic to do so. The law however, requires that before any such intention to compulsorily acquire one’s property is put into execution, the 31 person so affected must be given notice of such intention and the person must be adequately compensated. 3.5.7 Lands Act (Chapter 184) Section 3 of the Act vests all land in the President. A person cannot own land but only has a right to possession for a definite period. In relation to the common law, no action lay for the infringement of air space above certain levels. See the case of Bernstein of Leigh (Baron) v. Skyviews & General Limited (1978) QB 479 where it was held that no action could lie in respect of trespass or nuisance by reason only of the flight of aircraft at a height which was reasonable under the circumstances. In this case, the Latin maxim concerning the use of air space was said to be fanciful. 32 CHAPTER 4: FIXTURES AND FITTINGS 4.1 Introduction The common law rule with regards to fixtures is that whatever is attached to the soil become part of it. This Chapter therefore discusses the question whether an object affixed to the land by a tenant has formed part of the land and whether it can be removed by the tenant at the end of the lease. 4.2 Objectives At the end of this Chapter, students should be able to: a) Explain the differences between fixtures and fittings; b) Highlight the tests employed to determine when a chattel becomes a fixture by using either the ‘degree of annexation’ or the ‘purpose of annexation’; c) Analyse the common law exceptions to the general rule about fixtures becoming part of the land to which they are affixed; and d) Explain the general rights of third parties in relation to fixtures and fittings. 4.3 Fixtures and Chattels The general rule as to fixtures is the Latin phrase ‘quic quid plantatur solo, solo cedit’ which means that “whatever is attached to the land becomes part of it.” For instance, if a building is erected on land and objects are permanently attached to the building then the soil, the building and the objects affixed to it are all, in law, land. In other words, they are real property and not chattels, they will become the property of the owner of the land unless otherwise granted or conveyed as was held in the case of Royco Homes Limited vs. Eatownwill Construction Limited Ch. 276 at 289. This is so, notwithstanding that it was the common intention of the parties that there should be no merger or ownership. The subjective intention of the parties cannot affect the question whether the chattel has, in law, become part of the land. This was the holding of Lord Lloyd in the case of Elitestone Limited vs. Morris 1 WLR 687 at page 693. 33 In general, the word ‘fixture’ means anything which has become so attached to land as to form, in law, part of the land. The name ‘chattels’, which is derived from the Latin word ‘Catalla’, is given to things which in law are deemed personal property. Initially, chattels were divided into chattels real and chattels personal, the former being interests less than freehold in land which devolve after the manner of personal estate, as leaseholds. As opposed to freeholds, they were regarded as personal estate. But as being interests in real estate, they were called chattels real to distinguish them from movables, which were called chattels personal. Thus, the primary meaning from a historical point of view of ‘fixtures’ is chattels which are so affixed to land or to a building on land as to become in fact part thereof. Such chattels lose the character of chattels and pass with the ownership of the land. Therefore, a physical object will usually be either land or a chattel, but its nature may change according to the use of it. The materials used for building a house are thereby converted from chattels into land, and so automatically pass out of the ownership of the person who owned them as chattels and become the property of the owner of the land to which they are attached. (Riddall, p.929) The question of whether a chattel has become so affixed to land as to become part of it is sometimes exceedingly difficult to answer. It is a question of law for the judge, but the decision in one case is not a sure guide in another because it all depends upon the particular circumstances of a case, and more specifically upon two particular circumstances, namely the degree of annexation and the purpose of annexation. Due to the possibility of controversy between people as to whether a chattel is a fixture or not, the law has therefore devised these two tests that may be of assistance in making such a determination. The traditional test is the degree of annexation while the modern test is the purpose of annexation. 4.4 Degree of Annexation The general rule is that a chattel is not deemed to be a fixture unless it is actually fastened to or connected with the land or building. Mere juxtaposition or the laying of an article, however heavy, upon the land does not prima facie make it a fixture even though it subsequently sinks into the ground. If a superstructure can be removed without losing its identity, it will not in general be regarded as a fixture. 34 Under this test, a chattel must be screwed, bolted or cemented or secured in such other way that it has contact to the land. Anything resting on its own weight such as a cistern is therefore not a fixture according to this test. It therefore follows that the more secure the object and the more likelihood of damage to the ground in attempting to remove it, the more such chattel satisfies this test. The degree of annexation is not a decisive test. It is for this reason that the second consideration mentioned above is material, namely, the Purpose of Annexation. 4.5 Purpose of Annexation The original common law rule was that everything substantially attached to the land became the property of the landowner. The severity of this rule was ameliorated by two exceptions: First, certain kinds of chattels were held to remain chattels even after annexation, if the purpose of annexation was for the better enjoyment of the object as a chattel rather than to improve the land permanently. In this context, the ‘purpose’ is determined objectively from the evidence. It does not mean the subjective purpose of the person who annexed the chattel. Secondly, even though an object was clearly a fixture, and therefore part of the land, a tenant for years or for life was allowed to sever and remove it if he had annexed it to the land for certain purposes. Therefore, the test here is to ascertain whether the chattel has been fixed for its more convenient use as a chattel, or for the more convenient use of the land or building. This is a modern test which is based solely on intention. Thus, it focuses on the reason why a chattel was annexed. If it was intended to be part of the permanent improvements to the land as compared to being placed for the mere enjoyment of the land, then it satisfies the test of being a fixture. To determine the purpose of annexation, the question to ask is whether the intention was to effect a permanent improvement to the land or building as such or was it merely to effect a temporal improvement or to enjoy the chattel as a chattel. Thus, even if the degree of annexation was substantial, the intention is vital. 4.6 Distinction between Fixtures and Chattels The distinction between chattels, on the one hand, and fixtures and other objects that become part of the land was authoritatively restated in a leading case of Holland v. Hodgson (1872) L. R. 7 C. p.328 in which Blackburn, J. noted that, 35 ‘Perhaps, the true rule is that articles not attached to the land otherwise than by their own weight are not to be considered as part of the land, unless the circumstances are such as to show that they were intended to be part of the land, the onus of showing that they were so intended lying on those who assert that they have ceased to be chattels; and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to show that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel’. In Leigh v. Taylor (1902) AC 157, a tenant for life, the owner of some valuable tapestry, laid strips of wood over the drawing- room paper and fixed them to the walls with two-inch nails. Canvas was stretched over these strips and the tapestry was fastened by tacks to the strips. It was held that the tapestry had not become a fixture. It was obvious in this case that everything which was done could be accounted for as being absolutely necessary for the enjoyment of the tapestry as a chattel. In the case of Vaudeville Electric Cinema v. Muriset (1923) 2 Ch. D 74, a Cinema owner hired chairs for use in the cinema. According to the Council regulations at the time, the seats had to be screwed to the ground. The Cinema was later mortgaged and there was default on the part of the mortgagor. It was held that using the modern test, the purpose of screwing the seats was to adhere to Council regulations and therefore the intention was not for them to become permanently part of the land. In the case of Lyon & Co v. London City & Midland Bank (1903) 2 KB 135, seats were hired for temporary use. It was held that they were not fixtures. The case of Reynold v. Ashby & Sons (1904) AC 466, which had similar facts with the Muriset case save the fact that the chairs were not hired but belonged to the Cinema owner, held that the Bank could succeed as the chairs were to be part of the permanent improvements to the land. 4.7 Common Law Exceptions to the General Rule It is useful to note the principal transactions in which the question whether particular chattels are fixtures or not requires decision. The controversy usually arises between the following parties. 4.7.1 Landlord and Tenant In the course of time, the rule that an article becomes part of the land to which it has been affixed has been relaxed in favour 36 of the tenant for years, and he is now allowed to remove three particular classes of articles notwithstanding that they are fixtures in the strict sense of the term. These are, namely, trade fixtures, ornamental and domestic fixtures and agricultural fixtures. 4.7.1.1 Trade Fixtures It has long been the rule that during the term the tenant may remove fixtures that have been attached to the land for the purpose of carrying on his particular trade, since it is in the public interest that industry should be encouraged. Trade fixtures are therefore fixtures annexed for the purpose of carrying out business or trade and thus are removable by the tenant at the end of the lease or shortly thereafter. This point is illustrated in the case of Smith v. City Petroleum Co. Ltd (1940) 1 All ER 260. If trade fixtures are not removed within a reasonable period after the expiry of the tenancy, they become part of the land. Just as fixtures existing at the time of a mortgage cannot be removed, those attached to land at the time of a contract of sale should be left. 4.7.1.2 Ornamental and Domestic Fixtures It is now well established that during the term, a tenant may remove such chattels as he has affixed to a house for the sake either of ornament or of convenience, but this relaxation of the strict rule is not supported by such strong reasons as apply in the case of trade fixtures and it will not be extended. Examples of objects that have been held to be removable on this ground are ornamental chimney-pieces, fixed water-tubs, stoves and ovens. However, it should be noted that if a fixture takes the nature of a permanent improvement and which cannot be removed without substantial damage to the property does not come within the exception of an ornamental fixture as illustrated in the case of Buckland v. Butterfield (1820) 2 Brod. & B. 54 A tenant is allowed to remove those fixtures, at the expiration of the tenancy, which he annexed to the building at the beginning of the tenancy. Such chattels are those that can be removed without causing substantial damage to the property. 4.7.1.3 Agricultural Fixtures At common law, agricultural fixtures were not regarded as falling within the exception of trade fixtures for it was held in Elwes v. Maw (1802) 3 East 38 that though the sole purpose of their affixation was to further and improve his agricultural operations, yet they could not be regarded as trade fixtures. 37 However equity intervened and by 1901, glasshouses built by a market gardener for the purposes of his trade were allowed to come within the description of a trade fixture and were thus removable before the end of the tenancy against the will of the landlord. 4.7.2 Mortgagor and Mortgagee In this instance, the mortgage deed will usually explicitly state what is mortgaged so that in case of default on the part of the mortgagor, the mortgagee will know exactly what to lay claim on. Once land is mortgaged, all fixtures existing at the date of the mortgage become part of the mortgage and the mortgagor cannot remove them from the property. The position is taken further by the common law in the case of Reynolds v. Ashby & Sons (1904) A. C. 466 where it was held that the mortgagor is not entitled to remove fixtures which he has attached after the date of the mortgage. 4.7.3 Vendor and Purchaser Once land is assigned from a vendor to a purchaser, all fixtures existing at the date of the contract of sale pass to the vendor unless there are special conditions stating otherwise. Thus, even where the vendor remains in possession before the date fixed for completion, he cannot remove them because they are deemed to have been paid for by the price for the land. It is therefore vital to determine what items are fixtures and thus form part of the land and which are not. The general rule is that all fixtures on land at the time of sale must be left on the land because they are part of the land. See the case of Philips v. Lamdin (1949) Ch. D where the vendor was required to return the ‘Adam’ door he removed at the time of sale. It was held that the Adam door was a fixture. 4.7.4 Executor and Devisee Similarly, confusion may reign where it has to be determined between personal representatives and beneficiaries whether a chattel is realty or personalty. Therefore, the question of whether it’s a fixture or a fitting will arise because this will determine how such property is to be treated. Where a testator leaves land in his Will to a beneficiary, the rule is that all fixtures pass under the devise and therefore the testator’s personal representatives are not entitled to remove them for the benefit of the testator’s estate, whether they are ornamental, trade or any kind of fixture. In Re Whaley (1908) 1 Ch. D 15, for instance, where tapestry was so fixed as to improve the premises as such, it was held not to be removable even though ornamental in nature. 38 4.7.5 Third Parties In general, fixtures become the property of the owner of the land irrespective of the title of the person who affixed them. Therefore, title to the chattels belonging to one person may be lost if they are affixed to the property of another and this latter person is unaware of the fraudulent title of the former. The property owner is protected under equity by the doctrine of a bona fide purchaser for value. There is no room for the principle that a man cannot give a better title than he has (nemo dat quod non habet) since the title to the object as a chattel is extinguished entirely when it is turned into land. Therefore, a third party such as a mortgagee will take the mortgaged property free of any encumbrances he might not be aware of. This rule does not generally protect squatters on land who build at their own risk and are not entitled to compensation in case of any damage to their property by the rightful landowners who have no duty under the common law to rescue fixtures. In the Zambian case of Raphael Ackim Namung'andu v. Lusaka City Council (1978) Z.R. 358 the plaintiff erected a building on land belonging to the defendant. He had no permission to do so. The defendants demolished the building as a result of which electrical fittings, roofing sheets, window frames, electric bulbs, doors and door frames were destroyed with the rest of the building. The plaintiff claimed damages for the value of the items mentioned. It was held that squatters build at their own risk and if the owners of the land withdraw their permission or licence or if they decide to demolish a structure built in the absence of any permission or other lawful relationship, the squatters’ losses though very much regrettable are not recoverable in a court of law. It was further held that the electric appliances, doors, door frames, roofing sheets, bulbs and window frames which the plaintiff contended were already a part of the completed house, were merely fixtures and that there is no obligation to dismantle a house carefully when an owner of land is carrying out a lawful demolition. There is therefore no obligation to rescue any fixtures. CHAPTER 5: LEASES AND LICENCES 5.1 Introduction This Chapter discusses the essentials of a lease, how leases are created and terminated. A lease is both a contract and an estate. It is a contract for the exclusive possession and profit of 39 land for some determinate period, and any estate so created is called a term of years, or lease or a leasehold interest. 5.2 Objectives At the end of this Chapter, students should be able to: a) Understand what a lease is and explain how different it is from a licence; b) Highlight what the different types of leases and licences are and how they can be determined; and c) Give practical examples of the application of the law on leases and licences. 5.3 Leases 5.3.1 Definition of a Lease A lease may be defined as a contractually binding agreement between two or more parties. In real estate, this contract is usually between a landlord, or property owner, and a tenant, person who rents the property. The lessee (tenant) agrees to pay the lessor (landlord) for use of a tangible asset (apartment, or property) for an amount of time agreed upon in the lease terms. A lease is therefore a conveyance by which the lessor grants to the lessee an interest less t

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