By Dickson Jere
A couple was married for ten years. They had no children together. They acquired different properties during the subsistence of their marriage. One of the properties was in Kalundu in Lusaka which comprised of four big houses, one bedroom cottage and one bed sitter. It also had the main house with four bedrooms but was incomplete.
After divorce, the two went for property settlement at the High Court.
On the Kalundu property, the man insisted that he bought and built all the structures on the property and his former wife merely did the landscaping. He, therefore, asked the Court to give him that property despite it being joint owned. He had put his wife on the title deeds as joint owners. The ex-wife insisted that she also contributed towards the building of the structures.
Having heard the two parties, the High Court ordered that the ex wife be given only two houses on the property as her ex husband contributed more than her.
Unhappy, the women appealed, among other issues, against the Judgement that gave her only two houses when the same were on property that was jointly owned by her and former husband.
A panel of three Supreme Court Judges heard the appeal. They particularly took keen interest in the fact that the properties were built on the land that was jointly owned by the two. They explained that joint ownership of land has its own implications.
“There is indisputable evidence that the Kalundu stand is held on a joint lease,” they observed.
“We are the first to appreciate that land held on a joint lease or a joint tenancy has its own implications that flow from such a relationship,” Judges said.
One of the implications, the Judges noted, is that land that is owned jointly is “indivisible” between the two owners and therefore one cannot claim any particular part. They own it wholly together.
“This can be further explained that on the death of one of the parties to the tenancy his share accrues to the other or others by survivorship,” the Court said, adding that there was no need to bring any evidence as to who contributed more.
“In our opinion, the two should be treated as beneficially entitled in equal shares,” the Court ruled and reversed the lower Court findings.
Instead, the Supreme Court ordered that the properties on the land be valued and sold so that the two gets equal amounts or indeed one with money can buy out the other.
“Once the value of the improvements is ascertained, we order that the stand be sold and proceeds shared on equal basis,” the Court ruled.
Case citation – Scott v Scott -SCZ Judgment No. 3 of 2007.
Lecture Notes:
1. There are two types of land ownership in Zambia. One is joint tenancy and the other one is Tenancy in Common. In joint tenancy, you own everything together “indivisible” and when one dies, the other one takes over entire land as absolute owner. We call it “jus accrescendi”.
2. Tenancy in Common, on the other hand, means each person has his known shares in the land and when he or she dies, it forms part of the estate. It can be taken by the other person.
3. Whatever is built on the joint owned land, it is presumed it was built by all the owners unless you had express written agreement on the properties being built.
