By Dickson Jere

A couple, married for ten years but without children, acquired several properties during their marriage. One such property was located in Kalundu, Lusaka, and included multiple structures: four large houses, a one-bedroom cottage, a bedsitter, and an unfinished main house with four bedrooms.

After their divorce, the couple sought a property settlement in the High Court. The man argued that he was solely responsible for purchasing the Kalundu property and constructing all the buildings, while claiming his ex-wife only did landscaping. Despite the property being registered in both their names, he asked the court to award him the entire estate. The woman, however, insisted she had also contributed to its development.

The High Court sided partially with the man and awarded the woman only two houses on the property, reasoning that he had made a greater contribution.

Dissatisfied, the woman appealed the decision to the Supreme Court, especially challenging the ruling that granted her only part of a jointly owned property.

A panel of three Supreme Court Judges examined the matter and focused on the nature of the land ownership. They emphasized that the land was held under a joint lease, which comes with specific legal implications.

The judges explained that under a joint tenancy, the property is “indivisible,” meaning no one party can claim a specific portion—they both own it together in full. Furthermore, they noted that if one co-owner dies, their share automatically passes to the surviving owner—a legal concept known as “jus accrescendi.”

The Court ruled that since the land was jointly owned, each party should be considered to have equal ownership, regardless of who contributed more financially or physically. As a result, the earlier High Court decision was overturned.

The Supreme Court ordered that the entire property be valued and sold, with the proceeds to be split equally between the ex-spouses. Alternatively, one party could buy out the other’s share based on the valuation.

Case Reference: Scott v Scott, SCZ Judgment No. 3 of 2007.

Key Takeaways from the Ruling:

1. Zambia recognizes two types of property co-ownership: Joint Tenancy and Tenancy in Common.

2. In Joint Tenancy, the property is held collectively and cannot be split; upon one owner’s death, the entire property passes to the surviving co-owner automatically.

3. In Tenancy in Common, each party holds a defined share, and upon death, their portion becomes part of their estate.

4. Any developments on jointly owned land are presumed to be joint contributions unless a written agreement states otherwise.