CHAPTER TWENTY

THE AFRICAN CONCEPT OF LAND OWNERSHIP- THE AFRICAN

CUSTOMARY LAND TENURE.

20.0 Introduction

The nature of title and interests or rights in land under African

customary tenure has not only exercised the minds of scholars and
researchers, but also the Courts. Divergent views have been
expressed as to the nature of title, interests or rights in or to land
under the African customary tenure
The English concept of land ownership does not present itself with
much complications or misconceptions as the African concept of land
ownership or holding. In England, following the Norman Conquest
in 1066, all land is owned by the crown and no subject can have
allodial title to land. Land is held of the Crown either directly or
indirectly on one or other various tenures.1 According to Elias,
African customary law of tenure has no conception of land holding
comparable to the English idea of a fee simple absolute in possession
or to a theory whereby the ownership of all land in England is in the
Crown alone and everybody else holds his land only as a tenant of
the King2. This chapter examines the African concept of land
ownership and the nature of title to land and the interests that may
subsist under the African customary tenure. The chapter also
considers the role of chiefs in land matters under customary land
tenure.

20.1 Meaning of Land Tenure

The word tenure, from the latin tenere = to hold, implies that land ‘is
held’ under certain conditions. Land tenure may be described as a
system of rules and practices under which persons may exercise and
enjoy rights in land or objects fixed immovably on land. Land tenure
is a relationship between the persons and land which is exemplified
through rights.
On the complex character of land tenure, Meek has observed that
there are wide variations in the conditions under which land may be
held.

He observed that:-

1
See sections 1.3.1 and 1.3.2 of chapter 1 of this book.
2
T.O Ellias, The Nature of African Customary Law Manchester University Press, Manchester, 1956,
p.164

475
 The occupiers may or may not be owners, and the owners may or
may not be occupiers. Land may be held by landlords, leaseholders
or peasant proprietors. The landlords may be individuals, companies
or Governments. There are innumerable forms of tenancy. The
may be tenants with full rights of occupancy, tenants for a fixed
term of years, or tenants at will. Where there is a dual interest in the
occupation of land, tenancy may take the form of the system known
as metayage, whereby the proprietor receives a proportion of the
crops; or it may take the form of labour or cash contributions. Land
may belong to a kinship or local group, the individual members of
which have rights of users only. It may belong legally to the state,
but in practice the occupiers may enjoy all the privileges of
proprietors. It may be heritable and alienable, or heritable but
inalienable. It may be heritable by certain classes of relatives only.
It may be held subject to rules for the prevention of subdivision and
the promotion of good husbandry. There is a common saying that
property is a bundle of rights, and to form of property and to no form
of property is this more applicable than to land.3

Professor Bentsi – Enchill has observed that land tenure systems

represent relations of men in society with respect to that essential
and often scarce commodity, land4. On the variations of land tenure
systems, Professor Bentsi Enchill has observed thus:-

That land tenure systems should and do vary from community to

community stands to reason and is largely accounted for by the
unique historical development of political grouping and the
consequent variation of legal and institutional structures in different
polities.5

Professor Bentsi - Enchill has further observed that although the

actual patterns of land tenures differ from system to system, there are
certain uniformities of type in the relations involved which makes it
possible to apply a common scheme of analysis to the different
systems.6

3
Meek, C, K,. Land Law and Custom in the Colonies. London: Frank Cass and Co. Ltd 1968. p.1.
4
Kwamena Bentsi-Enchill, “Do African Systems of Land Tenure Require a Special Terminology?”
1965, Journal of African Law, Vol 9 No.2 at p. 115.
5
Ibid.
6
Ibid.

476
20.2 Colonial Views7 on The Nature of Interests and Rights under
African Customary Holding or Tenure.

During most of the early colonial periods in Africa, knowledge of

customary tenure in Africa was scanty. This was largely due to lack
of research on the subject. Various erroneous views based on
suppositions than fact were commonly expressed. Sometimes what
was known about one tribe was assumed to be replicated throughout
Sub-Saharan Africa. Often generalizations were made to the effect
that the African mode of land holding was communal ownership.
Examples of this can be found in the obiter dicta of the Privy Council
in Re: Southern Rhodesia8,Amodu Tijan v The Secretary Southern
Nigeria9, and Sobhuza II Vs Miller and others.10
Writing in about 1945, Meek observed that many of the early
investigations on the native systems of tenure were vitiated by
unsound methods of approach, such as the use of abstract questions
– the answers to which were often given by interested parties –
instead of the concrete method of tracing the actual history of the
plots of land.11 Meek identified the other frequent source error to
have been the presupposition that native conceptions of ownership
must be basically the same as those of Europeans.12

In Re: Southern Rhodesia, the Privy Council in delivering its

judgment commented on the nature of title to land of the natives of
Southern Rhodesia. The Privy Council used the level of social
organization of a society as the measure of the property rights of the
indigenous people. The Privy Council commented thus:-

…it seems to be common ground that the ownership of the lands was
“tribal” or “communal,” but what precisely that means remains to
be ascertained. In any case it was necessary that the argument
should go the length of showing that the rights, whatever they
exactly were, belonged to the category of rights of private property,
such that upon a conquest it is to be presumed, in the absence of
express confiscation or of subsequent expropriatory legislation, that
the conqueror has respected them and forborne to diminish or modify
them.

7
Mvunga refers to this as Colonial Attitudes, See Mvunga, M,P. “Land Law and Policy in
Zambia,” 1982 Mambo Press, p 24.
8
[1919]AC 211.
9
[1921]AC 399.
10
[1926] AC 518.
11
Supra note 3 at p.11.
12
Ibid.

477
 The estimation of the rights of aboriginal tribes is always inherently
difficult. Some tribes are so low in the scale of social organization
that their usages and conceptions of rights and duties are not to be
reconciled with the institutions or the legal ideas of civilized society.
Such a gulf cannot be bridged. It would be idle to impute to such
people some shadow of the rights known to our law and then to
transmute it into the substance of transferable rights of property as
we know them. In the present case it would make each and every
person by a fictional inheritance a landed proprietor richer than all
his tribe.’ On the other hand, there are indigenous peoples whose
legal conceptions, though differently developed. are hardly less
precise than our own. When once they have been studied and
understood they are no less enforceable than rights arising under
English law. Between the two there is a wide tract of much
ethnological interest, but the position of the natives of Southern
Rhodesia within it is very uncertain ; clearly they approximate
rather to the lower than to the higher limit13”

As to the nature of native title to land not only in Southern Nigeria,

but also to other parts of the British Empire the Privy Council in
Tijani v Secretary, Southern Nigeria observed thus:-

…Their Lordships make the preliminary observation that in

interpreting the native title to land, not only in southern Nigeria,
but other parts of the British Empire, much caution is essential.
There is a tendency, operating at times unconsciously, to render that
title conceptually in terms which are appropriate only to systems
which have grown up under English law. But this tendency has to be
held in check closely. As a rule, in the various systems of native
jurisprudence throughout the empire, there is no such full division
between property and possession as English lawyers are familiar
with. A very usual form of native title is that of a usufructuary
right, which is a mere qualification of or burden on the radical or
final title of the sovereign where that exists. In such cases, the title of
the sovereign is a pure legal estate, to which beneficial, rights may
or, may not be attached. But this estate is qualified by right of
beneficial user which may not assume definite forms analogous to
estates, or may, where it has assumed these, have derived them from
the intrusion of mere analogy of English jurisprudence…in India, as
in Southern Nigeria, there is yet another feature of fundamental
nature of the title to land which must be borne in mind. The title,
such as it is, may not be that of the individual, as in this country it is

13
Supra note 7 Per Lord Summer at pages 233-234.

478
 nearly always is in some form, but may be that of a community.
Such a community may have the possessory title to the common
enjoyment of a usufruct, with customs under which its individual
members are admitted to enjoyment, and even to a right of
transmitting the enjoyment as members by assignment inter vivos or
by succession. To ascertain how far this latter development of right
has progressed involves the study of history of the particular
community and its usages in each case. Abstract principles fashioned
a priori are of but little assistance, and are as often as not
misleading… the instance of Lagos the character of the tenure of land
among the native communities is described by Rayner C.J in the
Report on Land Tenure in West Africa, which that learned Judge
made in 1898, in language which their Lordships think is
substantially borne out by the preponderance of authority: “the next
fact which it is important to bear in mind in order to understand the
native land law is that the notion of individual ownership is quite
foreign to native ideas. Land belongs to the community, the village
or the family, never to the individual. All the members of the
community, village or family have an equal right to the land, but in
every case the chief or headman of the community or village, or head
of the family, has charge of the land, and in loose mode of speech is
sometimes called the owner. If there is to some extent in the position
of a trustee, and as such holds the land for the use of the community
or family. He has control of it, and any member who wants a piece of
it to cultivate or build a house upon, goes to him for it. But the land
so given still remains the property of the community or family. He
cannot make any important disposition of the land without
consulting the elders of the community or family, and their consent
must in all cases be given before a grant can be made to a stranger.
This is a pure native custom along the whole length of this coast, and
wherever we find, as in Lagos, individual owners, this is again due
to the introduction of English ideas. But the native idea still has a
firm hold on the people, and in most cases, even in Lagos, land is
held by the family, This is so even in cases of land purporting to be
held under Crown grants and English conveyances. The original
grantee may have held as an individual owner, but on his death all
his family claim an interest, which is always recognized, and thus
the land becomes again family land. My experience in Lagos leads
me to the conclusion that except where land has been bought by the
present owner there are very few natives who are individual owners
of land14.”

14
(1921) AC pages 402-405.

479
 In Sobhuza II v Miller and Others, the Judicial Committee of the
Privy Council observed that the notion of individual ownership was
foreign to native ideas and that land belonged to the community and
not to the individual. The Judicial system of the Privy Council
Committee observed thus:-

…To answer this question it is first necessary to recall the true

character of the native title to land throughout the Empire, including
South and West Africa. With local variations, the principle is a
uniform one. It was stated by this board in the Nigerian case of
Amodu Tijani v Secretary, Southern Nigeria and is explained in
the report made by Rayner C.J on Land Tenure in West Africa,
quoted in the case referred to. The notion of individual ownership is
foreign to native ideas. Land belongs to the community and not the
individual. The title of the native community generally takes the
form of a usufructuary right, a mere qualification of a burden on the
radical or final title of whoever is sovereign. Obviously such a
usufructuary right, however difficult to get rid of by ordinary
methods of conveyancing, may be extinguished by the action of a
paramount power which assumes possession or the entire control of
the land.15

20.3 Reaction to Colonial Views.

A number of researches on the nature of African customary tenure

were undertaken in the decade of 1940’s and beyond. These
researches and the publications resulting therefrom have disputed
most of the colonial views as exemplified in the Privy Council
judgments referred to above.

20.3.1 Communal or Group Ownership of Land

It may be recalled that in Tijani v Secretary Southern Nigeria,16 Lord

Haldane quoted the words of Rayner, C.J. in the opinion he gave in
the case. He observed that:-
The next fact which it is important to bear in mind in order to
understand the nature of land law is that the notion of individual
ownership is quite foreign to native ideas; land belongs to the
community, the village, or the family, never to an individual.

15
Per Viscount Haldane at page 525.
16
1921 AC 399.

480
 Elias has scoffed at the suggestion or idea that the whole African
land holding or ownership was communal. He retorts thus:-

The fallacy of so describing the African mode of land holding

arises, partly from the greater fallacy underlying the doctrine
of “primitive communism,” and partly from an imperfect
appreciation of the exact nature of the concept in African
legal categories.17

According to Elias, the land holding recognized by African

customary law is neither ‘communal’ holding nor ‘ownership’ in the
strict sense of the term.
He opined:-
The term ‘corporate’ would be an apter description of the
system of land-holding, since the relation between the group
and the land is invariably complex in that the rights of the
individual members often co-exist with those of the group in
the same parcel of land. But the individual members hold
definitely ascertained and well-recognized rights within the
comprehensive holding of the group.18

On the member’s right to his holding Elias notes that :-

A member’s right to his holding is in the nature of

a possessory title which he enjoys in perpetuity and
which confers upon him powers of user and of
disposition scarcely distinguishable from those of an
absolute free-holder under English law. His title is,
therefore, in a sense that of a part-owner of land
belonging to his family. He is not a lessee; he is not
a licensee; he is not, as is so often said, an usufructuary.
He pays tribute to nobody, is accountable to none but
himself, and his interests and powers far transcend those
of the usufructuary under Roman law.19

Elias went on to further observed that:-

17
Supra note 1 at p.163.
18
Ibid at p.164.
19
Ibid at p.165.

481
 Again, the individual’s holding does not come to an end at his death;
it is heritable by his children to the exclusion of all others. In short,
he is a kind of beneficial part-owner, with perpetuity of tenure and
all but absolute power of disposition.20

Bentsi - Enchill has observed that although in the large number of

traditional African polities allodial title is regarded as being vested in
the community as a whole or in a chief as trustee for all people there
is still some element of individual ownership. He observed thus:-

Beneath the umbrella of this group title is a progressive

individualization of interests specific to particular portions of the
group-owned land and vested in sub-groups and individuals. It is
the unapportioned areas which, like public
lands everywhere, remain under the direct supervision
of the appropriate group organization. Over the apportioned
or occupied areas, the group title is basically a reversionary
or residual interest beside being manifested in terms of
jurisdiction or administrative control. The interest of sub-groups
such as lineages and families in portions of the land allotted to
them is then less than allodial ownership but as indicated already, its
distance from allodial ownership varies from community to
community, and in many is close enough to be negligible.21

According to Bentsi Enchill, the words of Rayner C.J. (quoted above

by Lord Haldane in the opinion he gave) in Tijani case to the effect
that land in the indigenous land law belonged to the community, the
village, or the family and never to an individual, were not true in
that, under a group title there are distinct and exclusive interests of
subgroups and individuals in portions of such land occupied by
them or allotted to their interests, which are in many places as nearly
comprehensive as the fee simple estate of English law. The interest
that is acquired usually endures for as long as there are heirs to
succeed the original allottee or occupier unless he effectively
abandons the land22. This view is not in any material respect different
from Elias’ concept of ‘corporate’ system of land holding espoused
above.

C.M.N. White, a colonial Government land tenure officer in Northern

Rhodesia, conducted an official inquiry on the land tenure system in
all provinces of Northern Rhodesia, apart from Barotseland. The

20
Ibid at page 166.
21
Supra note Ibid at p. 125.
22
ibid at p. 127.

482
 conclusion from his findings were that land was generally
individually acquired and owned. He observed thus:-

… In general the sum total of rights which make up

the features of African Land Tenure in Northern Rhodesia
can only be regarded as equivalent to individual tenure.23

Writing on the Gikuyu land tenure system, the late anthropologist

and first President of Kenya, Jomo Kenyatta, in reaction to the views
that land was communally or tribally owned retorted thus:-

The sense of private property vested in the family was so

highly developed among the Gikuyu but the form of
Private ownership in the Gikuyu community did not
necessarily mean the exclusive use of the land by the owner
or the extorting of rents from those who wanted to have
cultivation or building rights. In other words, it was a mans
pride to own a property and his enjoyment to allow collective
use of such property. This sense of hospitality which
facilitated the communal use of almost everything, has been
mistaken by the Europeans who misinterpreted it by saying
that the land was under the communal or tribal ownership,
and as such the land must be ‘mali ya serikali’ which means
Government property. Having coined this new terminology
of land tenure, the British Government began to drive away
the original owners of land24.

Kenyatta went on to further observe that:-

In Gikuyu society the system of land tenure can only be

by reference to the ties of kinship. It is no more true to say that the
land is collectively owned by the tribe than it is privately owned
by the individual. In relation to the tribe, a man is the owner of his
land, and there is no official and no committee with authority to
deprive him of it or levy a tax on his produce. But in so far as
there are other people of his own flesh and blood who depend on
that land for their daily bread, he is not the owner, but a partner,
or at the most a trustee for the others. Since the land is held in
trust for the unborn as well as for the living, and since it
represents his partnership in the common life of generations, he
will not lightly take upon himself to dispose of it. But in so far as
23
White, C.M.N, Factors Determining the Concept of African Land Tenure Systems In Northern
Rhodesia, in African Agrarian systems “ed., Bigbuy at p.364.
24
Jomo Kenyatta, Facing Mount Kenya, “The Traditional Life of the Gikuyu” Kenway Publications
East African Educational Publishers Limited, 1938, P. 26.

483
 he is cultivating a field for the maintenance of himself and his
wives and children, he is the undisputed owner of that field and all
that grows in it.25

From the various views expressed above it comes out clearly that it
would be incorrect and untenable to describe the overall African
system of land holding or tenure as communal or tribal. Depending
on the circumstances, the rights or interest could be communal (such
as grazing rights) individual, concurrent or successive.
Some early writers or commentators unable to grasp the cluster of
rights or interests which could be involved in a given situation under
customary land tenure, attempted to make a distinction that
customary tenure involved the use or usufruct of land in contrast to
ownership. It has been noted that interests or rights in land are
capable of enduring for as long as there are heirs to succeed the
original allottee. In this respect customary tenure is similar to the
English fee simple estate which endures as long as there is an heir.

In summing up the main characteristics of indigenous systems of

land holding Meek concluded thus:-
Land is held on (a) a kinship, and/or (b) a local group basis.
Individuals have definite rights, but these are qualified by
membership of a family, kindred and ward (or small village).
Similarly, the individual claims of families exist concurrently with
the wider claims of the clan or local group. Title, therefore, has a
community character. It is also usufructuary rather than absolute.
Land may only be sold under conditions which do not conflict with
the rights of the kin or local group. The chief is the custodian of
land, but not its owner. The normal unit of land ownership is the
extended-family, or kindred. Land once granted to a family remains
the property of the family, and the chief has no right to any say in its
disposal. This constitutes a definite limitation on the conception of
land as the collective property of the tribe or local group. The
kinship basis of land holding ensures social stability, but the absence
of individual proprietary rights prevents the raising of money on
land and so is a hindrance to development. Land may be pledged
and redeemed at any time. The principle of redeem ability ensures
that land shall not be permanently lost, but it may be an impediment
to progress since no one will attempt to improve land of which he
may be deprived at short notice. The restrictions on the sale of land,
the limitation of possession to the period of effective use, and the

25
Ibid,at page 311.

484
 periodic re-allocation of land, all ensures that land shall not be
uselessly withheld from cultivation or lost to the community26.

Perhaps it is apt to conclude this part by quoting Professor Bentsi

Enchill who pointed out that individual ownership of interest is not
a new phenomenon under African land tenure systems.

Professor Bentsi Enchill observed thus :-

Enough has been said, however, it is hoped, to indicate that

“individual” ownership of interests in land, some equal, some
more,some less in quantum than the fee simple of the English
common law, is not something that has to be introduced
into African tenure systems as a novelty; it is present almost
as a matter of necessity flowing from the fact that groups are
made up of sub-groups and individuals, and that though the
cattle of their several members and sub-groups may be
pastured on common or public lands, they have always chosen
to do their farming not as the large group but at the level,
generally, of the individual household, and on specific
allotments exclusively held, generally in perpetuity.27”

20.4 Positions Of Chiefs Under African Customary Tenure

Ndulo has observed that a chief is everywhere in Zambia regarded as

the symbol of residuary and ultimate control of all land held by the
tribal community and further that in a loose mode of speech, is
sometimes called its owner.28 Ndulo noted that a chief holds the land
on behalf of the whole community in the capacity of a caretaker or
trustee only and further that the chief’s position was not comparable
to the Crown’s position in England, where by the ownership of all
land in England is in the crown alone and everybody else holds his
land only as tenant of the Crown 29. Ndulo’s observations are in
consonance with Elias’, who observed that:-

… African customary law of tenure has no conception of land-

holding comparable to the English idea of a fee simple absolute in
possession, or to a theory whereby the ownership of all land in
England is in the Crown alone and everybody else holds his land
only as a tenant of the King.

26
Meek, supra note 3 at pp. 26-27.
27
Ndulo,M. Minning Rights in Zambia, Lusaka: Kenneth Kaunda Foundation. 1987, P.128.
28
Ibid p.78.
29
Ibid.

485
 The African chief or king has no such legal right, even in theory; he
enjoys only an administrative right of supervisory oversight of the
land for the benefit of the whole community. If he requires a piece of
land, he must beg it of the individual holder of it, if the holder has no
immediate use for it. The importance of stressing this point is the
tendency of certain African chiefs to assert a wrongful claim to
feudal, proprietary ownership to community land whenever
European concessionaires wish to acquire it for mining purposes.
Any compensation money thus paid to the chief or the king
personally as absolute owner would be improper and the title
obtained by the purchaser would be avoidable at the best.30

The Mungomba Constitution Review Commission report of 2005

attempted to clarify the position of chiefs viz-à-viz the misconception
arising from the continued vesting of land in the President under the
Lands Act, of 1995. The Mungomba Constitution Review
Commission observed thus:-

The Lands Act of 1995, as already stated, vests all land in the
President who holds the same in perpetuity for and behalf of
the Zambian people. Further, this holding is for purposes of
administration and control by the President ‘for the use or
common benefit, direct or indirect, of the the people of Zambia.’
This vesting, quite clearly, does not mean that the President is
owner, but rather that he/she is trustee and administrator of
the land. The President, therefore, does not own beneficial and
proprietary interests; what the President has are powers of
regulation and administration. In the same manner that there
is misunderstanding with Regard to the President, so has the
confusion spread to chiefs. While chiefs can own land in their
individual capacities., it is a misconception that they own all
Customary land situated in their respective geographical areas.
A.N. Allot an authority on land tenure in Africa, analyses this
misunderstanding in a helpful and instructive manner. He
Draws the distinction between ‘interests of benefit’ and
‘interests of control.’ The former pertain to beneficial interests,
which vest title in the landlord. The latter, however, pertain to
control and regulation. The chief and headman play the role of
control and regulation in acquisition of land and its use and
cannot therefore, can be regarded as owner of the land.31

30
Supra note 1 at p.165.
31
See Interim Report of the Constitutional Review Commission, Government Printer Lusaka at
p.766.

486
 As pointed out above by the Mungomba Commission neither the
chief nor a headman is a land owning authority from whom all
estates are derived. The case of Mwiinda v Gwaba32 excerpted below
does exemplify the point that a village headman is not a land owing
authority. He, like the chief, merely performs the role of control and
regulation in the acquisition of land and its use.

MWIINDA v GWABA (1974) Z.R. 188 (H.C.)

[The Facts of the case appear from the Judgment of CULLINAN, J]

The plaintiff's claim is for damages for wrongfully entering the plaintiff's land and ploughing thereon,
for an injunction restraining the defendant from a repetition thereof, and for determination as to the
ownership of any crop at present on the land. The plaintiff, a farmer aged fifty-eight years, testified
that he came to Chikonga village in 1929. He was then thirteen years old. He married the niece of
Joseph Chongo. The latter had inherited land from his father headman Chikonga. In 1940, when the
plaintiff was twenty-four years of age, Joseph Chongo allocated some of his land to Joseph Kabangu,
Nelson Kanyama and the plaintiff-all of them relatives. The plaintiff thus acquired some seventy to
eighty acres and since that date had ploughed approximately sixty acres thereof. In November, 1972,
there was no grass in the usual village communal grazing area and so he decided to seek better
grazing over the river near Rusangu Secondary School. He moved his cattle to that area during the
months of November December 1972, and January, 1973. He continued to reside at Chikonga
village, keeping three herdsmen herding the cattle across the river.

On the 26th January, 1973, the defendant, who was headman of the Chikonga village, completed a
Change of Village form under section 4 of the Registration and Development of Villages Act, 1971,
and sent it to the plaintiff by hand of a schoolboy. The plaintiff had at no time indicated that he wished
to change villages. When he approached the defendant in the matter, the latter stated, "I am
removing you from your village to Rusangu." The plaintiff approached Chief Ufwenukwa; the latter
stated he was not concerned with the paper and did not want the plaintiff to move from the village.
Despite this, however, the defendant in November, 1973, ploughed a total of three plots consisting of
twenty acres of the plaintiff's land and planted maize and sweet potatoes thereon. The defendant also
broke the wire surrounding a night paddock for cattle and planted groundnuts therein. Ephraim
Kabunda gave evidence for the plaintiff. He stated that when Joseph Chongo died his inheritance did
not automatically pass to his son Reuben Chongo, but instead passed to the witness and to his
family. As the witness has sufficient land of his own the plaintiff thus remained in possession of the
land given to him by Joseph Chongo. Mr Kabunda stated that the plaintiff had never left the village
and that when he visited him during the relevant period, he found him living at the village with his wife
and children, with his cattle grazing on the other side of the river at Rusangu.

The defendant's version was altogether a different one. He stated that Chief Ufwenukwa had told him,
in the presence of the plaintiff, that the latter had informed the chief that he wished to move from
Chikonga Village. Both the chief and he had tried to dissuade the plaintiff from moving but, the
plaintiff had persisted. The Chief remarked, "Don't come and say we moved you from the village; you
have moved on your own". The plaintiff moved thereafter in October, 1972, to Rusangu and built a
house there, in which he resided. The plaintiff's wife remained behind in the village; she had refused
to go with the plaintiff as they had had a quarrel; the plaintiff locked the house in the village and she
lived elsewhere. On the instructions of the chief he issued the Change of Village form on the 26th
January, 1973. As the plaintiff had left the village the land reverted to the headman and he was
entitled to allocate it to others or possess it himself; he had taken only a small strip of land adjoining
his own land. He admitted that when a villager returns to a village he can be reallocated land by the
headman but, as the defendant remarked, "he comes as a stranger".

32
(1974) Z.R 188 (H.C).

487
Peter Malambo, a teacher in the Ministry of Education, testified that when he was transferred to
Rusangu Primary School, he made an application to purchase land at Rusangu. The plaintiff at the
time suggested that they purchase a plot jointly. The witness was informed that his application was
successful but at the time no conveyance as such had been executed. Apparently the plaintiff's
application was unsuccessful. He found the plaintiff grazing his cattle on the land at Rusangu where
he had built a hut. The hut was merely a pole and mud hut and was not of the same permanent
nature as the plaintiff's concrete house, with corrugated iron roof, in which he resided at Chikonga
village. Another witness, Enos Mulunda, testified that he was present when the chief had said, in the
presence of the plaintiff, that the latter wanted to move away from the village. Thereafter the witness's
evidence was mainly hearsay.

Quite the most impressive witness to come before the court was Chief Ufwenukwa himself; he gave
his evidence in a calm and dispassionate manner, which evidence I completely accept; it is very
much in conflict with that of the defendant. The chief stated that the plaintiff had approached him
informing him that he wanted "to find a piece of land at Rusangu, for grazing". He had also said that if
he was successful in his quest "he would come back and talk ". The chief had given no instructions to
the defendant to complete a Change of Village form and, indeed, considered the form to be invalid in
as much as it did not bear his signature or stamp (this is not necessary under section 4 of the Act). As
far as he was concerned, the plaintiff had not moved to another village and therefore remained a
villager of Chikonga village; indeed, even if he moved to a farm or to Lusaka he would still remain a
villager. The headman had asked him, "What do you do when a person leaves the villages?" and he
said, "You wait until he returns and declares his intentions." He opined that when a headman
allocates land it is not his land as such to give; that when a villager returns to a village he uses the
same land as he used before and that while the plaintiff had been away in Rusangu the land had
belonged to no one else, as to all intents and purposes the plaintiff was still at home. The plaintiff left
in October, 1972 and was away for some months; his wife remained behind in the village; as far as he
was concerned she had had no quarrel with the plaintiff as invariably a wife would approach him in
the event of such a dispute. The plaintiff used to visit his wife at the village. After he had come back
he had shown the Change of Village form to the chief. Shortly after that again the defendant had
approached him and informed him that the plaintiff was back and that the villagers had elected him as
assistant headman. The chief pointed out that it is the villagers who would make such an
appointment, the chief merely approving; the villagers must obviously select an inhabitant of the
village for such appointment. When the plaintiff approached him complaining that the defendant was
working on his land he had told the defendant not to use the land as the owner was back. The
defendant stated he was going to think about the matter but he had ignored the chief's instructions.

The plaintiff admitted he wished to purchase a plot of land at Rusangu with Mr Malambo but stated
that he did not intend to move away from the village. It seems to me that the truth in this case is to be
found in the chief's evidence, namely that the plaintiff left the matter of his moving from the village
open until such time as he had purchased the land. I do not accept the defendant's evidence that the
plaintiff's wife refused to accompany him and that he closed up the household in the village. I
consider his residence at Rusangu was obviously of a temporary nature. In any event, whatever his
eventual intentions were in the matter it seems to me unrealistic to suggest that he had permanently
moved from the village before his application to purchase the land had been dealt with and, indeed,
before any conveyance was executed in the matter. Meanwhile, the plaintiff was apparently entitled to
graze his cattle on the land; indeed, even the defendant himself admitted that "all Chikonga cattle go
to graze at Rusangu but not to move away from the village. " I cannot say that the defendant
impressed me as a witness. His evidence is not corroborated by his own witness, Chief Ufwenukwa.
His motives in issuing the Change of Village form are questionable. Under section 4 of the Act the
issue of the form does not arise until such a time as the villager becomes an inhabitant of another
village, whereupon the headman is obliged to inform the headman of the village of which he has
become an inhabitant. The form in question is addressed, not to a headman, but to "the Farm
Manager, Rusangu Secondary School". It would appear from the form itself that neither the chief nor
the District Secretary received a copy thereof. The issue of the form some three months after the
plaintiff had commenced grazing his cattle at Rusangu is, to say the least of it, rather unusual. The
defendant stated that he issued it in order to protect the plaintiff from attack by people at Rusangu. I

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feel that it was somewhat late in the day for him to think of such protection, particularly when it seems
the plaintiff had by then returned to Chikonga village. Even if one accepts the defendant's evidence
that as headman he was entitled to dispose of the plaintiff's land even by taking it unto himself, the
question arises as to why he should so allocate it when, on his own evidence, some three strangers
had meanwhile settled in the village and required land, and more important, when the plaintiff himself
had meanwhile returned and had continued ploughing on one and one half plots of his own land.

The question of whether or not the plaintiff continued to be a village "inhabitant" as defined in the Act,
1971, arose during the hearing. The word is defined as follows:

"Inhabitant means a villager who has attained the age of 14 years and who habitually and in
fact resides in a village."

I would consider that, even though the plaintiff during the material time was not physically present in
the village, he nonetheless resided as such at the village: the hut at Rusangu was a makeshift one,
his permanent home, his wife and family remained at the village where indeed he still ploughed some
land. In any event, whether or not he was an inhabitant of the village for the purposes of the Act is not
important. What is important is whether or not under customary law he was regarded as an inhabitant
of the village and whether as a result he still retained a right over his land. At this stage I would like to
express my appreciation of the learned advice which the assessors gave to the court on the issues
involved. Such advice was tendered in open court as follows:

Mr Edward Jericho Mulenga:

"The issue concerning people transferring from a village: when a man moves from a village, the land
he was ploughing or the land he was given to settle, that land remains the property of the headman. It
is the headman who is going to be approached to allocate land. If a person wants to come back there
is nothing to stop him coming back to a registered village. If a man leaves the village for a short time
before he has given indication of leaving permanently he is still called a villager unless he informs the
headman he will never return to the village. If the land was given as an inheritance it remains in the
hands of those to whom it was given. If a man moves away from a village leaving his wife and
children that land remains with him as he leaves his wife to tender the fields."

Mr Phillip Kapasa:
"I concur with what has been said by Mr Mulenga. If a man leaves from the village and has not been
given documents for his Chief and his new Chief, he is still counted as a villager from whence he
came. If he goes away to a farm he goes away as a worker and he is regarded as a villager of the
village from whence he came. If a man goes away for work for about two years and dies at that place
of work we bring his body back for burial as he is still regarded as a man of that village."

Mr Andrew Mwiiya:
"As a Tonga man, a person who had lived in a village for a length of time is not a stranger to that
village. When I talk of a stranger I talk of a person with 12 months' residence. When I speak of a
villager I mean a person with 12 to 14 years' residence. If he wants to move he approaches the
headman who will tell him to go or take him to the chief. Then they will talk. That sort of transfer would
be observed. If he is not happy then he can come back and be accepted. Any land he had left if he is
a big man with a family he will use that land as he left it. I am not sure whether it is the thing that he
who lived in a village for a long time goes away for a short while and comes back and is treated like a
stranger; that man is treated like a member of the village and goes back to his original land and uses
it."

It will be seen that the advice of all three assessors on the issue in hand is unanimous. Furthermore,
although Chief Ufwenukwa was not called as a witness by the court, nonetheless, for the purposes of
section 34 (1) (a) of the High Court Act I would consider him to be a person who has special
knowledge of the relevant customary law. His opinion in the matter also coincided with that of the
three assessors. I find that I have no difficulty whatsoever in readily conforming to such learned

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 opinions. I find that the plaintiff never ceased to be an inhabitant of the village and retained his
customary rights over his land and that the defendant wrongfully entered, ploughed and planted
thereon….

The plaintiff testified that the defendant had left a crop of sweet potatoes on the land. I declare that
the ownership in such crop lies in the defendant. I grant an injunction to the plaintiff restraining the
defendant from entering upon the land of the plaintiff except for the purpose of removing the aforesaid
crop.

On the question of security of tenure under African customary

holding, Professor Bentsi Enchill has observed that security of tenure is
not intrinsically a problem in most systems of land tenure in Sub Saharan
Africa.33 He further observed that:-

The ‘tenant’ in general is a peasant proprietor, entitled to farm the

same land for his whole lifetime…and generally to pass on his
property to his heirs and successors34.

Customary tenure is analogous to freehold. The rights in land

recognized by the Customary law resemble an English freehold
made determinable upon abandonment of the land. They are rights
to occupy land which devolve upon successors ad infinitum until
abandoned. Abandonment can generally be established when it can
be shown that there is no intention to use the land either presently or
in future35.

Meek has observed that there is absence from native customary law
of any “statute of limitation” within which claims over land - or
indeed anything else – can be asserted or enforced.36
Generally, the right to acquire land under Customary tenure in
Zambia vests in individuals by reason of their being legitimate
residents in a given area within which they exercise these rights of
acquisition. The right to acquire land can be seen as inhering in the
membership of a community. Once the requirements relating to
legitimate residence are satisfied individuals may acquire land in a
number of ways37. These are briefly discussed below:

(a) Direct Acquisition-

33
Supra note 2 at page 133.
34
Ibid.
35
See the Mwiinda v Gwaba Case excerpted above.
36
Meek. C.K. supra note 3 at p.24 – p.25. see also the observations made under section 17.14 of
Chapter Seventeen under the case of Lumanyenda dealing with adverse possession.
37
See Generally Mvunga, M. P. Land Law Policy in Zambia, 1982, Mambo Press.

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 An individual may acquire land by opening up and using a
parcel of land over which no individual has already prior
established rights, or if any earlier established rights have
already elapsed or been abandoned in respect of such piece or
parcel of land. This is still the most usual method of acquiring
land under Customary tenure in Zambia38.

(b) Transmission and Succession – Inheritance.

Generally under Customary tenure in Zambia the individual’s

holding does not come to an end at his death. The same is
inheritable by kinsmen depending on the Customary Law of the
area or district.

(c) Transfer Intervivos

An individual who has already acquired rights over a parcel of

land may transfer those rights to another in any of the following
ways-

(i) Temporary transfer by way of loan of the land; or

(ii) Outright transfer by way of gift or exchange,39or
(iii) Sale.
According to Mvunga there is generally no sale of land under
customary tenure in Zambia. What is sold are the improvements
on the land as opposed to land itself40. However, White has
observed thus to the contrary:-
The Conception that Africans do not sell land cannot in my view be
sustained. A sale is merely an outright transfer for valuable
consideration in form of cash; a gift is an outright transfer in which
the consideration takes the form of goodwill between kinsmen or
neighbours. Sale is therefore a simple development within a cash
economy, and not a new and revolutionary principle, given the type
of structure of villages found in Northern Rhodesia.41

White further observed that to attempt to distinguish a sale of land

from a sale of improvements is to attempt a false distinction. One
cannot be transferred without the other. The buyer acquires rights
over both the improvements and the land on which they have been

38
See The Land Report 1967 at page 47.
39
See 1967 Report at p. 47.
40
Mvunga, M. P. Land Law and Policy in Zambia, 1982, Mambo Press. p. 37.
41
C.F. White, “Factors Determining the content of African land-tenure systems in Northern
Rhodesia”’ African agrarian systems,p.365.

491
 effected.42 Owing to increasing population and increasing acreages
under cultivation land has become a valuable and scarce commodity.
Sales of land can no longer be ruled out under customary tenure in
Zambia. It should also be borne in mind that customary law is not
static. Changes do take place within the realm of Customary law. An
illustration of this change can be found in the case of Wokoko v
Molyko,43 where a Nigerian Court had to decide whether at Buea in
the Cameroon sales of land had replaced the previous practice of not
selling land. The Court held that custom was not static and that sales
of land had superseded an earlier practice of not selling land.

20.5 SUMMARY OF CHAPTER TWENTY

This chapter has examined and considered the concept of land

ownership under African Customary tenure. Various views on the
nature of title, interests or rights in land under African Customary
holding or tenure have been discussed and examined. From the
various views examined, it would be incorrect to describe the overall
African system of land tenure as communal or tribal. Depending on
the circumstances the rights or interest under customary tenure

42
ibid at p.51.
43
[1938] 14 N.L.R.L 41.

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could be communal, individual, concurrent and/or successive. As
observed by Bentsi-Enchill, individual ownership of interest in land
is not something that had to be introduced into African tenure
systems a novelty.
According to a research done or conducted by White, a colonial land
officer in 1959 in all provinces of Northern Rhodesia, apart from
Barotseland, land was generally individually acquired and owned.
It is generally accepted that the position of an African Chief or King
is not comparable to the Crown’s position in England, whereby the
ownership of all land in England is in the Crown alone and
everybody else holds his land as a tenant of the Crown. In Zambia,
though the chiefs are sometimes in the loose mode of speech referred
to as owners of land, it is a misconception to say that they own land.
A distinction has to be drawn, as pointed out by Allot, between
‘interests of benefit’ and ‘interest of control’. The Chiefs and their
headmen merely exercise interest of control and regulation in the
acquisition and use of land while their subjects have beneficial
interests in land. The case of mwiinda v Gwaba to some extent
illustrated this distinction.

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