By Teddy Chipoya
INTRODUCTION
Eminent
domain, as we know it today, can be traced to the Latin term Eminenes Dominium,
which referred to a government’s power to appropriate private property for the
public’s use, with or without the property owner’s consent.[1] The power, usually deemed inherent
in sovereign states, to take private property for public use, subject to making
reasonable compensation, as distinct from mere seizure.[2] In the case of United States of
America v Frank L.Jones, Adam of George J. Pumpelly deceased and others,[3] the United States Supreme Court
restated the right or principle of eminent domain thus:- The power of taking
private property for public uses generally termed the right of eminent domain
belongs to every independent Government. It is an incident of sovereignty and
requires no constitutional recognition
HISTORICAL
BACKGROUND OF EMINENT DOMAIN IN ZAMBIA
The
power of eminent domain dates back to pre-colonial era when the British settler
governed Northern Rhodesia, at that time a legislation was required to empower
the governor to acquire any land for public purposes[4]. Thereof, in 1929 The Public Land
Acquisition Ordinance[5] was enacted to regulate the
governor exercise of that power. of which section 3 of the Ordinance gave the
governor the power of eminent domain to acquire land for any public purpose for
an estate in fee simple or for a term as he thinks fit.
Further,
section 2 of the Public Land Acquisition Ordinance defined what public purpose
"as to mean for the exclusive use of the government or for the general
public use." This generally entails shows that the public interest has
been the core aspect for the exercise of this power. Section 9 of the act provided that any
dispute that arises there to shall be settled in the High Court.[6]
In
the post-independence era, the protection from deprivation of property which
was entrenched in section 18 of the independence constitution[7]. This was a fundamental right
which guarantee protection from deprivation of property the exception excerpted
in section 18 (2) with adequate compensation to any country of choice, notwithstanding
that the Public Land Acquisition Ordinance was still in place.
After
independence the white settlers who owned land left the country leaving large
tracts of land in Zambia. However, there was no provision in the Independence
Constitution that empowered the then president Dr. Kenneth Kaunda to
compulsorily acquire land which was abandoned, unoccupied, unutilized or owned
by an absentee landlord. The 1969 Referendum to end all referendum was
introduced, of which the main objective inta alia was to remove all the
entrenchment clause in the constitution and simplify the amendment of any part.[8]
The
amendment Act section 4 repelled section 18 of the independence constitution,
though still afforded protection against land deprivation provided for
compulsory acquisition and everything ancillary to it. The amendment took away
the courts power to determine the amount of compensation was to be determined
by resolution of national assembly.
The
current 1991 Constitution[9] guarantees the protection from
deprivation of property provided under section 16(1) which states the general
rule that the acquisition must be under a law which provided for adequate
compensation excerpted below Article 16: Protection from Deprivation of
Property
1. Except as provided in this Article, no property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, unless by or under the authority of an Act of Parliament which provides for payment of adequate compensation for the property or interest or right to be taken possession of or acquired.
2. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of clause (1) to the extent that it is shown that such law provides for the taking possession or acquisition of any property or interest therein or right thereover[10]
In
the case of Zambia National Holding Limited and United Independence Party
Vs. The Attorney General[11] it was stated that the Land
Acquisition Act does not contravene the letter and spirit of article 16 of the
1991 constitution as amended.
LEGISLATION THAT PROVIDES FOR COMPULSORY
ACQUISITION
In
general, the legislation that regulate the compulsory acquisition of land in
Zambia is the Constitution and the Lands Acquisition Act, however local
authorities and other public bodies exercise this power where they are empower
by an act. In the case of Municipal Council of Sydney Vs. Campbell and
Others[12] it was stated that a body such as
Municipal Council is authorized to take land compulsory for specified purposes
will not be permitted to exercise it's powers for different purposes and if it
attempt to do so the court will interfer.
Some
of the examples of acts that have the power of eminent domain include;
1. The Urban and Regional Planning Act
2. Electricity Act
3. Zambian Railway Act
4. The Zambia Tanzania pipeline Act
•The
Urban and Regional Planning Act[13] - A planning authority shall, as
far as is reasonably practicable, for purposes of securing an efficient
planning framework and discharge of functions under this Act, liaise with
appropriate regulatory authorities and take into account the requirements specified
under the relevant law[14], henceforth section 48. Provides
that;
(1) Where the owner of any land which is reserved under an integrated development plan or a local area plan is deprived of its reasonable, lawful and beneficial use by a refusal of permission to develop such land solely on the ground that the proposed development would interfere with the use of the land for the purpose for which it is reserved, the owner of the land may request the local authority to cause the reserved land to be acquired in accordance with the Land Acquisition Act.
(2) Subject to this Act, an owner of land may serve notice on the Minister or the planning authority requesting that an order be made to cause the land, in whole or in part, to be acquired if by reason of any provision in an approved development plan—
(a) a proportion of the land cannot be lawfully developed and the remainder is incapable of reasonable, lawful and beneficial use; or
(b) the land has been severed in such a manner that one or more severed portions are so small or so badly shape that they are incapable of reasonable and beneficial use.
Therefore,
where the local authority sees it expedient to compulsory acquire land for
purposes of development and subdivision defined under section 22(4) of the act
the acquisition shall be carried in accordance with the Lands Acquisition Act.
•The
Electricity Act[15]
- In addition to the functions
under the Energy Regulation Act, the functions of the Energy Regulation Board
under this Act section 4, the Board can compulsorily acquire land in performing
this function and everything ancillary there to section 22 provides that;
(1) The President may, in accordance with the Lands Acquisition Act, compulsorily acquire land that the President may consider necessary for purposes of, or associated with, the generation, transmission, distribution or supply of electricity by a licensee.
(2) A licensee that acquires land under this section shall not—
(a) use the land for any other purpose except the purpose for which it was acquired; or
(b) dispose of the land or an interest or right on the land, except with the prior approval of the President, taking into account the public interest
(3) Where a licensee does not use the land or any part of it for the purpose for which it was acquired, the land, or that part of it that the President may determine, shall revert to the use and absolute control of the President.
•The
Railway Act[16] - provides for the power of
eminent domain under section 17 where Whenever the Minister is satisfied that-
(a)
it is necessary for a railway company to acquire a particular piece of land for
the construction of any railway authorized by a railway permit; and
(b)
such railway company has taken all reasonable steps to acquire such land by
agreement; and
(c)
there is no reasonable prospect of such land being acquired by agreement;
Compulsory acquisition of land for railway purposes he may recommend to the
President that such land should be acquired under the provisions of the Land
Acquisition Act. Cap. 189
18.
(1) Any person entitled to compensation under this Part shall, within such
time, and in such form, as may be prescribed, deliver to the railway company
liable to pay compensation a notice stating the amount of compensation claimed
and providing such other details as may be prescribed. Procedure for claiming
compensation
(2)
Within twenty-eight days of receiving the notice referred to in subsection (1),
the railway company shall-
(a)
make to the claimant an unconditional offer in writing in such amount as
compensation as may appear adequate to such railway company; or
THE
LEGAL FRAMEWORK OF EMINENT DOMAIN IN ZAMBIA
Following
the enactment of the independent constitution which removed the entrenchment
close, Land Acquisition Act[17] was enacted to repeal the Public
Land Ordinance of which its main essence was to address the prevalent concerns
of absentee landlord who left Zambia after independence.
From
the preamble of the act provides that "An act to make provision for the
compulsory acquisition of land and other property and to provide for matter
incidental to or connected with the foregoing." The land acquisition act
is the main referral act for instances of compulsory acquisition of land, and
all other legislation stem from it because it extensively provides for
necessary procedure and system of acquiring land compulsory as excerpted above.[18]
Section
3 of the Land Acquisition Act provides or empowers the president to compulsory
acquire any property of any description whenever he is of the opinion that it
is desirable or expedient in the interest of the public interest. However, even
though the act is silent on the question if public purpose the high court are
of the view that it does not give the president a blanket right to compulsory acquires
any property with compensation and without any cause or reason.[19]
In
the case of Wise Vs. Attorney General[20] it was stated that the purpose of
compulsory Acquisition must be public one, the silence of the Land Acquisition
Act on the question of the. Purpose or purposes for which the state may
compulsory acquire without any cause or purposes is not a blanket right.
Further,
all public bodies established by a parent act of Parliament have a provision
for compulsory acquisition that fills the silence of the Lands Acquisition Act.
For instance, the Electricity act[21] section 22(1) The President may,
in accordance with the Lands Acquisition Act, compulsorily acquire land that
the President may consider necessary for purposes of, or associated with;
I.
The generation
II. Transmission
III. Distribution or
IV. Supply of electricity by license
Thereof
the Electricity Act gives power to the Electricity Regulatory Board to acquire
land for transmission and supply electricity which is essentially a public
purpose as necessitated by the constitution and the Lands Acquisition Act.
Further,
once the president declares or set his intention to acquire such land pursuant
to section 3 of the act it is very important that the Minister of land under
prescribed for to issue out a notice to the interested party. Interest is
defined under section 2 of the Land Acquisition Act as ""land"
includes any interest in or right over land, but shall not include a mortgage
or other charge."
1.1
Requisite Formalities of compulsory Acquisition of land
Section
5 to 9 lays down the steps and formalities required to consolidate this process,
in the case of Van Blerk Vs. Attorney General and Anor2002[22] it was stated that for compulsory
Acquisition of land there is a procedure to be followed under the lands
Acquisition act hence below is the laid down procedure for acquiring land.
5.(1)
If the President resolves that it is desirable or expedient in the interests of
the Republic to acquire any property, the Minister shall give notice in the
prescribed form to the persons interested in such property and to the persons
entitled to transfer the same or to such of them as shall after reasonable
inquiry be known to him. Notice of intention to acquire property
(2)
Every such notice shall, in addition, invite any person claiming to be
interested in such property to submit such claim to the Minister within four
weeks of the publication of the Gazette notice in terms of section seven.
6.
(1) The Minister may, by notice under section five or by any subsequent notice,
direct the persons to whom notice is required by section five to be given to
yield up possession of such property on the expiration of the period specified
in the notice, which period shall be not less than two months from the date of
service of the notice: Notice to yield up and power to taken possession
Provided that where the President certifies that the property in question is
urgently required, the persons aforesaid may be required to yield up possession
of the property on the expiration of such lesser period as the President may
direct.
(2)
On the expiration of the period referred to in subsection (1) the President and
all persons authorized by him may take possession of such property.
7.
(1) Every notice under section five or six shall be served either personally on
the persons to be served or by leaving it at their last usual place of
residence or business if any such place can after reasonable inquiry be found;
and if any such person is absent from Zambia or if he or his last usual place
of residence or business cannot after reasonable inquiry be found, such notice
shall be left with the occupier of such property or, if there be no such
occupier, shall be affixed upon some conspicuous part of such property. Service
of notices
(2)
If any person upon whom such notice is required to be served is a body
corporate, such notice shall be deemed to have been duly served if left at, or
addressed by prepaid registered letter to such body corporate at, its
registered office or principal office in Zambia.
(3)
Every such notice shall be published in the Gazette as soon as may be
practicable after the same has been served in accordance with the provisions of
this section, and, in addition, in the case of land, a caveat shall be lodged
with the Registrar.
(4)
Where any such notice has been published the acquisition of the property to
which it relates shall not be invalid by reason only of any irregularity in the
service of the notice or by reason of it having been published prior to its
service on any person required to be served there.
8.
(1) Where any property proposed to be acquired under this Act is a portion of
land held in circumstances in which the residue of land would be less than half
an acre, the owner of such land may, within thirty days of the publication in
the Gazette under section seven of the notice to yield up possession, by notice
in writing served upon the Minister require the President to acquire the whole
of the land and, upon such notice being served, the President shall acquire the
whole of such land: Acquisition of portion of land Provided that where the
owner of such land owns also immediately adjoining land which, together with
the residue as aforesaid, would exceed half an acre in area, the President may
refuse to acquire such residue.
(2)
This section shall not apply to any land situate within an urban area.
9.
Provided he is willing and able to yield up possession of the whole thereof, no
person shall be required to yield up to the President possession of part only
of any house or other building. Acquisition of portion of house or other
building
It
is very important that these procedures are followed for the process to be
valid, in the case of Mpongwe Farms Limited and Two others Vs. Attorney
General[23] it was stated that the need to
strictly follow the procedure for compulsory Acquisition to be valid. It should
be noted that the protection from deprivation of property is so fundamental
right guaranteed by the constitution bill of rights part III that the court
will order the land Compulsorily acquired a nullity for procedural impropriety
and subsequently cancel out new title even if the land has been developed for
public purpose This was seen in the case of Chipabwamba and Others v Yssel
Enterprises Limited[24] the Court of Appeal ordered that
the certificate of title be cancelled On the issue of the established
commercial farm them . court held that We are alive to the fact that the th
Respondent has invested “4 heavily in the land to turn it into a commercial
farm However since the acquisition of the land was a nullity the losses and
gains shall lie where they, have fallen.”
1.2
COMPENSATION
Part
III of the act provides for 10. Subject to the provisions of this Act, where
any property is acquired by the President under this Act the Minister shall on
behalf of the Government pay in respect thereof, out of moneys provided for the
purpose by Parliament, such compensation in money as may be agreed or, in
default of agreement, determined in accordance with the provisions of this Act:
Compensation
payable for property acquired Provided that where the property acquired is land
the President may, with the consent of the person entitled to compensation,
make to such person, in lieu of or in addition to any compensation payable
under this section, a grant of other land not exceeding in value the value of
the land acquired, for an estate not exceeding the estate acquired and upon the
same terms and conditions, as far as may be practicable, as those under which
the land acquired was held.
1.3
Disputes Settlement
11.
(1) If within six weeks after the publication in the Gazette under section
seven of the notice to yield up possession, there remains outstanding any
dispute relating to or in connection with the property, other than a dispute as
to the amount of compensation, the Minister or any person claiming any interest
in the property may institute proceedings in the Court for the determination of
such dispute.
(2)
Where any dispute arises as to the amount of compensation, the Minister or any
person claiming to be entitled to compensation may, and shall if such dispute
is not settled within the aforementioned period of six weeks, refer such
dispute to the Court which shall determine the amount of compensation to be
paid.
1.4
UNDEVELOPED, UNUTILIZED AND ABSENTEE LANDLORD
Part
IV of the act deals with matters relating to absentee landlords, unutilized and
undeveloped land 15. (1) Notwithstanding anything contained in this Act or any
other law, but subject to subsection (2), no compensation shall be payable in
respect of undeveloped land or unutilized land. Land for which no compensation
playable
(2)
Save where the land acquired is unutilized land to which an absentee owner is
beneficially entitled, compensation shall be payable in respect of the
unexhausted improvements on unutilized land:
Subsection
(3) of section 15 provides that for instances when land can be deemed to be
undeveloped and subsection (4) of section 15 provides for when la d cannot be
regarded as unutilized.
Section
16. An "absentee owner" for the purposes of this Act means, as
applied to the owner of any estate or interest in or right over land or other
property-
(a)
in the case of an individual, a person who is not ordinarily resident in
Zambia;
(b)
in the case of a partnership, a co-ownership or a body corporate, one in which
the effective control lies, directly or indirectly, in the hands of individuals
who are not ordinarily resident in Zambia
CASE
COMMENTARY
Chipabwamba
and Others v Yssel Enterprises Limited and Others [2022] ZMCA 31
The appellants were villagers
settled in Luomba area in Chief Muchinda’s chiefdom in the Serenje District of
the Republic of Zambia. In 1997, the 1st respondent applied for the said land
and was given a 14 year right of occupancy and was later given a certificate of
title in 1998. The land in dispute was later sold to the 4th respondent who
subsequently acquired a certificate of title. This land was then established
into a commercial farm. Because of this, the appellants were forced to vacate
the land and settled in the Musangashi Forest Reserve under difficult living
conditions. In December 2017, the appellants commenced legal action in the High
Court for Zambia in which they challenged their forced eviction. The appellants
sought 15 reliefs from the High Court including:
1)
An order and a declaration that the taking over of their customary land without
following the required procedure is unconstitutional and therefore null and
void;
2)
A declaration and an order that they be allowed to enjoy their land in
accordance with the customary law of the area and its attendant rights; and
3)
An order directed at the 3rd and 5th Respondents to cancel any allocation,
assignment or Certificate of Title that was issued to the 1st and 2nd
Respondents, which covers the land which the community occupied, used and
enjoyed under customary tenure.
The
High Court found that the alienation procedure for acquiring customary land was
not followed with respect to the third parties living on the land and thus the
alienation and subsequent conversion of the land into statutory tenure was null
and void. Furthermore, the court deemed the conversion of the land in dispute
as compulsory acquisition of land and the court ordered the 7th and 8th
respondents in consultation with the chief to grant the petitioners land with a
value not exceeding the value of the disputed land in an area where they can
enjoy their cultural rights as Lala people subject to such land being
available.
The
court further stated that, the forced eviction of the petitioners from their
land was a violation of their constitutional rights and ordered the respondents
to compensate the petitioners. However, the court held that it would not be in
the public interest to cancel the certificate of title issued to the new owners
because they had settled on the disputed land as commercial farmers, most
likely in furtherance of the government’s policy to create farm blocks which
are beneficial for national development.
The
petitioners appealed against the decision of the High Court to the Court of
Appeal. In particular, the refusal of the High Court to cancel the certificate
of title to the 4th respondent. On appeal, it was the appellant’s view that
because the conversion of land was found to be null and void, the Certificate
of Title should have been cancelled and the community enabled to return to
their land.
The
Court of Appeal rendered its judgment in favor of the appellants. It held that the High Court was correct in
its finding that the conversion of the land was contrary to the law and
accordingly null and void. However, it ought to have cancelled the certificate
of title. The Court of Appeal ordered that the certificate of title be
cancelled. On the issue of the
established commercial farm the court held that “We are alive to the fact that
the 4th Respondent has invested heavily in the land to turn it into a
commercial farm. However, since the acquisition of the land was a nullity, the
losses and gains shall lie where they have fallen.
Wise
v Attorney General (1990/1997)
-
FACTS - The plaintiff, who arrived in Zambia in 1952, inherited the farms from
his uncle and allowed the widow of the previous owner to continue farming on
one of the properties under the name of E.F. Hervey Limited. However, when the
widow's company, now owned by Raymond Barret and his wife Lynn, refused to
vacate the premises, the plaintiff took legal action.
The
High Court ultimately ruled in favor of the plaintiff in November 1987, but the
defendants appealed the decision. Despite securing temporary stays of
execution, the Supreme Court dismissed the defendants' applications for a stay
of the order for possession pending the determination of the appeal on two
occasions. As a result, the Sheriff partially executed a Writ of Possession
issued by the High Court, removing items from the farms. The plaintiff was
subsequently detained by immigration officers and served with Notices of
Intention to Acquire the two farms while in prison. Consequently, the plaintiff
was forced to leave the country without regaining his freedom.
Legal
principal - The Purpose of Compulsory acquisition must be a public one – The
silence of the Land Acquisition Act on the question of the Purpose or purposes
for which the state may compulsorily acquire property upon payment of
compensation does not per se give the state a blanket right to compulsorily
acquire Property without any cause or purpose.
HOLDING
- (i) The notices of intention to acquire property and to yield up possession
were irregular and unlawful and therefore nullified;
(ii)
The compulsory acquisition of the said two farms was null and void ab initio;
(iii)
The Plaintiff was and continues to be the owner of the said two farms;
(iv)
The Plaintiff be awarded damages to be assessed by the learned Deputy Registrar
Zambia
1994
Zambia
National Holdings Limited & Another V Attorney-General (S.C.Z1994) [1994]
The
appellants brought a petition in the High Court to challenge the decision for
the respondent to acquire compulsorily under the Lands Acquisition Act the
appellants' land being Stand number 10934 Lusaka which is also known as the New
UNIP Headquarters. The President resolved that it was desirable or expedient in
the interests of the Republic to acquire this property whereupon the
appropriate Minister gave notice to the appellants of the Government's
intention in that behalf and the steps and formalities under the Act for such
acquisition were commenced. The appellants wrote to the respondent suggesting a
sum of money to be aid as compensation but as it it turned out, and as the
parties specifically informed the learned trial judge, they wished the question
of compensation to be postponed until the court had disposed of the challenge
to the legality and constitutionality of the compulsory acquisition. The
petition was unsuccessful and the appellants appealed.
Legal
principal - The Lands Acquisition Act does not contravene the letter and spirit
of Article 16 of the 1991 Constitution as amended
Held:
(i)
Although Article 94 of the constitution gives the High Court unlimited
jurisdiction that court is bound by all the laws which govern the exercise of
such jurisdiction
(ii)
Statutory instruments only come into force in when made in accordance with the
relevant section of Cap 2 and Article 80 of the Constitution
(iii)
The Lands Acquisition Act did not contravene the spirit and intent of Article
16(1) of the Constitution
(iv)
The appellants did not discharge the burden which was on them to demonstrate
mala fides on the part of the President
(v)
The acquisition here was not unlawful for want of a prior tender of
compensation
VAN
BLEARK V ATTORNEY GENERAL
Municipal
Council of Sydney v Campbell [1925] AC 338
Privy
Council facts: s 16 of the Sydney Corporation Amendment Act 1905, the Municipal
Council of Sydney is empowered, from time to time, with the approval of the
Governor, to purchase or resume any land required for Carrying out improvements
in or remodeling any portion of the city. Lord Mayor prepared a minute relating
to the subject of the extension of Martin Place Ñ extension to Macquarie
Street. The respondent’s application of injunctions was granted by Chief Judge
in Equity Ñ restrain them from proceeding under this resolution The Chief Judge
held that these lands were not really Required for any purpose there was no
need for such an extension. Main purpose was taken with the object of enabling
the Council to get the beet of any increment in the value of them arising from
the extension. In the minute, it was shown that the words for the improvement
and remodeling of the area in the vicinity were inserted at the suggestion of
the solicitor for the municipality after the resolution had passed.
Legal
principles:
A
body such as the Municipal Council of Sydney, authorized to take land
compulsory for specific purposes, will not be permitted to exercise its powers
for different purposes, and if it attempts to do so, the Courts will interfere
Onus: the party raising such an application must prove that the Council, though
professing to exercise its power for the statutory purpose, is in fact
employing them in furtherance of some ulterior object Judgment:
Held
- that the conclusion of the learned Chief Judge in Equity upon the question of
fact is fully sustained by evidence. No plan of improvement or remodeling was
at any time before the Council. Their Lordships think there is great force in
the argument that the Council applied to the purpose of giving a new form to a
transaction already decided upon, rather than to the consideration and
determination of the question whether the lands to be taken were required for
the purpose of remodeling
[1] https://ij.org/issues/private-property/eminent-domain/eminent-domain-history/
[2] Twp. of W. Orange v. 769 Assocs., 172 N.J. 564 (N.J. 2002).
[3] United States of America v Frank L.Jones, Adam of George J.
Pumpelly deceased and others
[4] Land law in Zambia: cases and materials / Fredrick S. Mudenda.
[5] Chapter 87 of 1958 edition of the Laws of Zambia - since repealed.
[6] Ibid
[7] section 18(2) of the Independence Constitution.
[8] Land law in Zambia: cases and materials / Fredrick S. Mudenda.
[9] The proposed Constitutional provisions relating to land are dealt
with under section 13.4 of Chapter 13.
[10] Constitution Of Zambia Cap 1 of the Laws of Zambia
[11] Zambian National Holding limited And United Independence Party v
Attorney general (1993/94) ZR 115 (SC).
[12] Municipal Council of Sydney v Campbell [1925] AC 338
[13] [No.3 of 2015 35
[14] Ibid' section 5(1) of the Urban and Regional Planning Act No.3 of
2015 35
[15] The Electricity Act [No. 11 of 2019 309
[16] CHAPTER 453 OF THE LAWS OF ZAMBIA
[17] CHAPTER 189 OF THE LAWS OF ZAMBIA
[18] Ibid
[19] Ibid
[20] Wise v Attorney-General (HP 668 of 1989) [1991] ZMHC 12 (15
December 1991)
[21] [No. 11 of 2019 309
[22] Van Blerk v Attorney General and Another, Supreme Court Appeal No.
138 of 2002 (unreported)
[23] Mpongwe Farms Limited (In Receivership) and Two Others V Attorney
General – 2004/Hp/0010 [H/C Unreported]
[24] "Chipabwamba and Ors v Yssel Enterprises Limited and Ors
[2022] ZMCA 31
Teddy Chipoya is a second-year law student at the University of Copperbelt. He writes this in his personal capacity.