By Dickson Jere
The owner of 5.8 hectares of customary or traditional land passed on leaving five children. As part of the inheritance, the children agreed – with consent of the headman – to divide the land into five pieces and each was given share. One of the children sold his piece to the buyer who proceeded to convert the same from traditional land to statutory leasehold (he put on title).
Somehow, it appears that the ‘converting’ was for the entire 5.8 hectares. So, one of the children approached the buyer and demanded extra money since she was not consulted for the sale of her portion. The buyer did not accept and thereafter a dispute arose.
The other four children then proceeded to the Lands Tribunal where they challenged the sale of the traditional land and also putting it on title without their consent. The Tribunal ruled in favour of the four children.
The buyer appealed to the High Court, which also ruled in favour of the children, stating that he could not be an innocent buyer as customary land always has family interests.
Dissatisfied, the buyer launched another appeal in the Court of Appeal, arguing that he genuinely bought land from one of the children and did not know about the interests of the other children.
Simply, he was the bonafide purchaser of value without notice as did not know the interest of other children when he bought the land.
A panel of three judges looked at the evidence and determined thus;
“Indeed, generally customary tenure systems are communal and their management is derived from customary norms and principles,” the Judges noted.
“What that entails is that customary land can only be alienated, but cannot be bought or sold. Only land under leaseholds tenure can be bought or sold,” the Judges ruled.
The Court opined that the buyer should have known that customary land in Zambia always has other interests from family members who should be consulate before converting the same to leasehold tenure.
“From facts of this case, it is evident and we have no doubt that at the time Appellant was dealing with 1st Respondent he was aware that the land was customary land and should have known the implications of transacting in customary land,” the Judges said.
They opined that Court said the converting of customary land and obtaining titles by the buyer was aimed at depriving other children of their rights in the land left by their father.
“That amounts to fraud,” the Judges said, adding that the buyer did not do his due-diligence by checking who else had the interest in the land.
The Court reversed the transaction and gave back the loan to all the five children.
Case citation – Dr Banda v Bestile Phiri and Others – Appeal No 113 of 2018.
Lecture Notes;
1. The sad reality is that many people are now selling and buying customary land when in fact it is against the law. This case underscores the fact that people must be careful when dealing with customary land as it is supposed to be be guarded as communal but with the right of usage by one occupying it under the authority of the chiefs.
2. In short, customary land is held in trust of the people by chiefs or traditional authorities and therefore cannot be sold and has no monetary value. However, when the same in converted to leasehold, it loses its relationship to the chiefs or traditional authorities.