Chapter 20
Chapter 20
20.0 Introduction
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
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.
…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”
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:-
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:-
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
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:-
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.
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.
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 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.
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
488
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:
"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
489
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.
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:
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.
490
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.
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.
42
ibid at p.51.
43
[1938] 14 N.L.R.L 41.
492
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.
493