By Dickson Jere
Two neighbors lived side by side in harmony in Kafue Estates. Initially, what separated them was vegetative hedge but one of them decided to build a “wall fence” which divided the two houses.
After many years, the other neighbor demolished the fence and built a new one – apparently to match the one he was constructing around his house. He did this without consulting the neighbor.
Livid, the neighbor sued him in the Magistrate Court for damages as well as causing a nuisance. The Court found that the neighbor who demolished the fence was wrong and committed a tort. He was ordered to pay the neighbor including for loss of business as his neighbor left his business to attend to the problem.
Unhappy, the neighbor appealed to the High Court.
Having looked at the evidence, the Judge found that the neighbor who demolished the fence was wrong and that he also committed a criminal offense for breaking the wall fence without consulting.
“As such the unilateral act of the appellant is one that cannot only be termed a nuisance but an unlawful act,” the Judge ruled.
The Judge observed that both neighbors were wrong to have constructed the boundary fence without consulting each other as the law requires that both should actually consent to the design and pay equally for the construction.
“In the interest of justice and bring closure to this dispute between the parties as neighbors, an assessment of the cost of the wall that the respondent incurred shall be done and half of that cost shall be borne by the appellant,” the Judge ruled.
“Similarly, an assessment of the cost of the wall that was appellant built slabs shall be done and half of the costs shall be borne by the Respondent,” the Judge said.
The Court declined to order damages to the neighbor who claimed that he lost business as a result of attending to the dispute over the wall fence saying loses were too remote to the attributed to the dispute.
“That said, as I have already found that the appellant had no right to demolish the boundary wall without consulting the Respondent,” the Judge said and ordered nominal damages of ZMK900.
Case citation – Davis Zulu v Winstone Phiri -2021/HP/A015 and Judgement delivered this week on 23rd February, 2026.
Lecture Notes;
1. Under the Fencing Act, neighbors must agree on the design and cost of the construction of boundary wall and pay for it equally unless otherwise agreed. If the neighbors cannot agree, the matter is referred to Arbitration for determination.
2. If the wall fence is destroyed by one of the neighbors, the law demands that the neighbor should actually pay for the entire cost of repairs or building new one.
