The Zambian Court of Appeal has reaffirmed that customary land cannot be bought or sold, ruling that any attempt to convert traditional land into leasehold property without the consent of all interested family members is unlawful.
The landmark decision arose from a dispute involving 5.8 hectares of customary land that had been left to five children following the death of their father.
According to legal expert Dickson Jere, the siblings, with the consent of their village headman, agreed to divide the traditional land equally among themselves. However, one of the children later sold his portion to a buyer, who proceeded to convert the land from customary tenure into statutory leasehold and obtained a title deed.
The dispute arose after it emerged that the title covered the entire 5.8 hectares rather than just the portion that had allegedly been sold. One of the siblings demanded compensation after discovering that her interest in the land had been ignored, but the buyer refused, leading to legal proceedings.
The remaining four siblings challenged the transaction before the Lands Tribunal, arguing that the customary land had been converted without their knowledge or consent. The Tribunal ruled in their favour.
The buyer appealed to the High Court, claiming he had lawfully purchased the land. However, the High Court dismissed the appeal, holding that customary land carries family interests that cannot be ignored.
Still dissatisfied, the buyer took the matter to the Court of Appeal, arguing that he was a bona fide purchaser for value without notice because he was unaware of the interests of the other family members.
The Court of Appeal rejected the argument and ruled that anyone dealing with customary land is expected to understand that such land is communal in nature and usually involves the interests of multiple family members.
The judges stated that customary land in Zambia can only be alienated through established legal processes but cannot be bought or sold in the same manner as leasehold land.
“Generally, customary tenure systems are communal and their management is derived from customary norms and principles,” the Court observed.
The judges further ruled that the buyer should have conducted proper due diligence before attempting to convert the land into leasehold.
According to the Court, the conversion of the customary land into titled property without the consent of the other beneficiaries was intended to deprive them of their lawful interests.
The Court described the conduct as amounting to fraud, noting that the buyer failed to verify whether other family members had rights over the land before completing the transaction.
As a result, the Court nullified the transaction and restored ownership rights to all five children.
The case, Dr Banda v Bestile Phiri and Others (Appeal No. 113 of 2018), serves as an important reminder that customary land is held in trust by traditional authorities for the benefit of communities and families.
Legal experts say the judgment highlights the importance of obtaining consent from all interested parties before attempting to convert customary land into leasehold tenure.
The ruling also serves as a warning to prospective buyers that purchasing customary land without carrying out thorough due diligence could result in costly legal disputes and the cancellation of the transaction.
