Land Law in Zambia (Mudenda)

PART ONE
INTRODUCTION
Chapter one, An Introduction to Land Law in Zambia, is an introductory

chapter. The chapter attempts to give in a general way the nature and
scope of Land Law and introduces most important of the technical terms
and concepts, including the two basic doctrines of English Land Law,
viz.: the doctrines of tenures and estates. These technical concepts and
terms are unavoidable to the study or understanding of our land law.
Chapter two, Ownership of Land and its Limitation, examines and
considers the concept of ownership of land and its limitations. The chapter
examines what ownership of land entails at common law, as well as the
various restrictions placed at common law on ‘owners’ of land. The
chapter then proceeds to examine the various statutory limitations placed
on ‘ownership’ and enjoyment of land in Zambia. These various
restrictions have been put in place in order to protect the wider interests
of society and the public at large.
Chapter three, Fixtures, is concerned with fixtures. In law, the concept
of land is often expressed in the latin maxim or tag ‘quic quid Plantuntar
solo, solo cedit’ (whatever is annexed to the land has become part of
the land). It is therefore important to determine whether or not an object
or chattel has become a fixture and therefore part of the land. The
chapter considers and discusses the two tests that can be used in
determination whether an object or chattel has become part of the land.
Chapter four, Co-ownership: Concurrent Interests in Land,
examines the nature and types of Co-ownership. The law of Co-
ownership operates wherever two or more people enjoy the rights of
ownership of property or land at the same time.
Chapters five to seven dealing with Leases and Licenses, Mortgages
Easements and Profits respectively, essentially deal with proprietary
interests that may exist in land (except for licences which are not
proprietary interests in land). One way of describing land law is that it is
the study of proprietary interests or the creation and operation of
proprietary interests in land. Leases, mortgages, easements and profits
are examples of proprietary interest or rights that one person may have
in the land of another. These rights, even if created by contract, are
capable of affecting other people, not simply the parties to the contract.
In other words, land law rights are capable of attaching to the land itself
so that any person who comes into possession or ‘ownership’ of the
property or land may be entitled to enjoy the rights it gives or be subject
to the obligations it imposes.
Chapter eight, Legal and Equitable Interests in Land, deals with
and considers the doctrine of notice, which is a fundamental doctrine to
land law. The consequence of legal and equitable distinction is fundamental
to land law. The extent to which a purchaser of land is bound by third
party rights when acquiring property is often determined by whether the
rights are legal or equitable.
Chapter nine, Transmission of Title and the Equitable Doctrine of
Part Performance, examines and considers the Statute of Frauds, 1677
and the equitable doctrine of part performance. At common law the rule
of English law is that contracts can be made quite informally. No writing
or other form is necessary. The Statute of Frauds, 1677 requires under
section 4 that contracts for sale of land or disposition of an interest in
land must, in order to be enforceable by action, be supported by written
evidence. The chapter considers the effect of section 4 together with
the evaluation of the doctrine of part performance.
Chapter ten, The Doctrine in Walsh v. Lonsdale, examines the
doctrine enunciated Walsh v. Lonsdale. The chapter also considers the
extent of application of the doctrine in Zambia.
Chapter One
AN INTRODUCTION TO LAND LAW IN

ZAMBIA
1.0 INTRODUCTION: The Nature and Scope of Land Law
Broadly speaking, the law of real property (or land law) is

essentially concerned with ownership of land. Land law may be
defined as that branch of law which deals with and regulates
man’s rights and duties to land and the interest which may be
acquired and liabilities which may accrue to man inter se in
relation to the use of land.1 According to Dixon, the law of real
property is obviously concerned with land, rights in or over land
and the processes whereby those rights and interests are created
and transferred.2 Riddal has observed that land law is concerned,
first, with various aspects of ownership of land and, secondly,
with interests in land, and particularly, with the question whether
such interests in land are binding on a subsequent holder of the
land.3
From the various definitions given above, it comes out clearly
that one sphere or aspect of land law is concerned with interests
in land. These interests are rights in land held by persons other
than the owner. There are various forms of interests or rights in
land that can be held by persons other than the owner. These
interests include leases, mortgages, easements and profits. The
law relating to the various forms of interests in land held by
persons other than the owner is discussed in various chapters in
this book.
With regard to liability, a land owner may be liable in tort if
he or she interferes with the legal rights of others. This aspect is
covered under section 2.3.1 of chapter two of this book.
The term ‘real property’ is derived from the old remedy for
dispossession of land. Originally, real property was the term
applied to any property that was the subject matter of a real
action in the common law courts. This applied only to freehold
interests in land and was not available to actions relating to
leaseholds. The person wrongfully dispossessed of his land could
bring a real action i.e., claiming the land; in other words the
1
Okon, E. ‘Land Law As An Instrument of Social Change’, Zambia Law Journal, vol. 17 (1985), p. 46.
2
Dixon, M., Land Law, London: Cavendish Publishing Limited (1994), p. 1.
3
Riddal, J.G., Introduction to Land Law (4th ed.). London: Butterworths (1988), p. 3.
6 LAND LAW IN ZAMBIA
thing (res) itself. On the other hand, a person who was wrongfully
dispossessed of his goods or chattels could only bring an action
for damages against the person of the wrong-doer. The
consequence of a personal action, for instance, for dispossession,
was that the wrongful dispossessor could either hand back the
personal property or pay compensation, whereas with a real
action, if a freeholder had been dispossessed wrongly, then
possession of the property had to be handed back. In
consequence, a distinction was made between real property (or
‘realty’), which could be specifically recovered and personal
property or ‘personalty’ which could not.4
It must be pointed out from the outset that even if we have
spoken of an owner of land or ownership of land ‘there is, in
fact, no such thing as ‘ownership’ of land in an absolute sense
or at any rate.’5 In England, according to the doctrine of tenure,
all land is owned by the crown and a subject can merely hold
land either directly or indirectly of the crown on one or other
various forms of tenures. The doctrine of tenure is discussed
under section 1.3.1 of this chapter. In Zambia, all land is vested
in the President who holds it in perpetuity for and on behalf of
all the people of Zambia.6 What a person can therefore ‘own’
both in England and Zambia is merely an estate or interest in
land of a defined duration.
The learned authors of Megarry’s Manual of The law of
Real Property have observed that the objects of learning the
Law of Real Property are:
(a) to acquire a knowledge of the rights and liabilities
attached to interests in land; and
(b) to lay a foundation for the study of conveyancing.7
Conveyancing is concerned with how rights in land may be
created and transferred. Land law principally deals with the
rights and liabilities of land owners. Conveyancing may be defined
as a science and art of validly creating, transferring, and
extinguishing rights in property, particularly in or over land, by
written deeds of various kinds. It is accordingly a major branch
of legal work and lawyer’s business. Conveyancing is based on
the knowledge of what rights can exist in or over particular
kinds of property, of what ends can be secured within the existing
rules of law, and of what machinery, such as a vesting order,
4
See generally Megarry and Wade, Law of Real Property (4th ed.) London: Sweet and Maxwell (2000), p. 5.
5
Supra note 3, at p. 5.
6
See section 3 of the Lands Act, Chapter 184 of the Laws of Zambia.
7
Hayton, D., Megarry’s Manual of the Law of Real Property (6th ed.) London: ELBS (1982), p. 1.
AN INTRODUCTION TO LAND LAW IN ZAMBIA 7
can appropriately be employed to achieve particular ends. It
includes investigation of title and preparation of agreements and
other instruments which operate as conveyances.8
1.1 Proprietary Nature of Interests or Rights in Land
Proprietary rights in land are interests in land, whether legal

interest or equitable interests or mere equities that are ancillary
or dependent upon interests in land.9 As to the nature and effects
of land rights or interests that may subsist in land, Dixon has
observed thus:
…‘land law rights’, even if created by a contract,

are capable of affecting other people, not simply
the parties to the contract. In other words, ‘land
law rights’, are capable of attaching to the land
itself so that any person who comes into ownership
or possession of the land may be entitled to enjoy
the rights it gives or be subject to the obligations it
imposes. This is the ‘proprietary’ nature of land
law rights and it is completely different from the
merely ‘personal’ obligations which an ordinary
contractual relationship establishes. In fact, one way
of describing what land law is about is to say that it
is the study of the creation and operation of
proprietary rights, being rights which become part
of the land and are not personal to the parties that
created them.10
Leases, mortgages, easements and profits are examples of

proprietary interests or rights that may exist in land or rather
held by one person in another person’s land. To create a right
over the land of another, that right must (apart from statute),
create a burden on the land, i.e., an equitable estate or interest
in land.11 Before a right or an interest can be admitted into the
category of property or of a right affecting property, it must be
definable, identifiable by third parties, capable in its nature of
assumption by third parties, and have some degree of
permanence or stability.12
8
Walker, D.M., Oxford companion to law, Oxford: Claredon Press (1980), p. 287.
9
10
11
Per Lord UpJohn in National Provincial Bank v. Ainsworth [1952] 2 All ER 472, at p. 488.
12
Ibid., Per Lord Wilberforce at p. 494.
There are generally two categories of proprietary rights or

interests in land. These are estates and interests in land.13 The
estates that may subsist in land are discussed under section
1.3.2 of this chapter. Interests in land can be taken to mean the
rights which one person enjoys in the land belonging to someone
else. The interest is not a right in one’s own land, but in the
‘estate’ of another person.14 Proprietary interests may be
transferred or sold to another person and may be binding against
a new owner of the ‘estate’ over which they exist. For example,
in Chona v. Evergreen Farms Limited,15 the defendant company
was bound by a right of way which the plaintiff had exercised
on the land for more than twenty years before the defendant
company acquired the land or farm through which the right of
way was being exercised.
1.2 Sources of Land Law in Zambia
The sources of Land Law in Zambia may be found in statutes

enacted by the Zambian legislature, English common law,
principles of equity, customary law, English statutes applicable
to Zambia by virtue of the English law [Extent of Application]
Act16 and the British Acts Extension Act,17 judicial precedents
and writings of eminent authors.
1.2.1 Statutes Enacted by the Zambian Legislature
The Constitution of Zambia18 is the supreme law of the land.

All laws in Zambia are subject to the Constitution. Any law that
contravenes or is inconsistent with the Constitution is null and
void.19
In terms of property rights under the Constitution, article 16
provides for protection against deprivation of property. This article
may be resorted to in a case where there is a challenge to the
President’s powers to, for instance, compulsorily acquire property
under the Lands Acquisition Act.20 Article 16 of the Constitution
is discussed under chapter 14 of this book which deals with
compulsory acquisition of property in Zambia.
13
14
Ibid., p. 5.
15
1996/HP/2727 – The case is excerpted under chapter 6 dealing with Easements and Profits.
16
Chapter 11 of the Laws of Zambia.
17
18
Chapter 1 of The Laws of Zambia.
19
See Mumba v. The People (1984) ZR 38.
20
There are a number of statutes enacted by the Zambian
legislature which deal with specific areas or aspects of land
law. These statutes include: the Lands Act;21 the Lands and
Deeds Registry Act;22 the Land [Perpetual Succession] Act;23
the Agricultural Lands Act;24 the Land Survey Act;25 the Lands
Acquisition Act;26 the Landlord and Tenant [Business Premises]
Act;27 the Housing [Statutory and Improvement Areas] Act;28
the Water Act; 29 the Rent Act; 30 the Common Leasehold
Schemes Act;31 and the Town and Country Planning Act,32 and
the Trust Restriction Act.33 A number of these statutes are
covered or dealt with in this book.
1.2.2 English Common Law
The English Law [Extent of Application] Act34 (whose object,

as per its preamble, is to declare the extent to which the law of
England applies to Zambia), provides for the application of
English common law, doctrines of Equity and certain English
statutes. Section 2 of the Act provides that:
2. Subject to the provisions of the Constitution of

Zambia and to any other written law-
(a) the common law; and
(b) the doctrines of equity; and
(c) the statutes which were in force in England
on the 17th August, 1911 (being the
commencement of the Northern Rhodesia
Order in Council, 1911); and
(d) any statutes of later date than that
mentioned in paragraph (c) in force in
England, now applied to the Republic, or
21
22
23
24
25
26
Supra note 20.
27
28
29
30
31
32
Supra note 20.
33
34
Supra note 16.
which hereafter shall be applied thereto by

any Act or otherwise; and
(e) the Supreme Court Practice Rules of
England in force until 1999: Provided that
the Civil Court Practice 1999 (The Green
Book) of England or any other civil court
practice rules issued after 1999 in England
shall not apply to Zambia except in
matrimonial causes shall be in force in the
Republic.
Hatchard and Ndulo have observed that chapter 11 of the Laws

of Zambia (which at the time of their writing was chapter 4 of
the Laws of Zambia) is vague and unsatisfactory.
They observed thus:
For a statute of such fundamental significance,

Chapter 4 is uncomfortably vague. There is doubt
about the significance of the 1911 date, about
precisely which pre-1911 English statutes are
applicable, about what the doctrine of equity means
and most of all there is doubt about whether it
embraces the law as developed in the common
law jurisdictions other than England. It is possible
to argue that the law referred to can include only
English Common Law. The history of the
enactment supports this view although past history
is increasingly of questionable significance in the
circumstances of Zambia. The title of the Act, as
well as the side notes to it which refer to English
Law, supports the view that it refers exclusively to
England, although these are not necessarily
determinate of the issue. This construction is also
favoured by the preliminary definition in the
interpretation and General Provisions Act (Chapter
2 of the Laws of Zambia), although again there is
room for dispute on this point.35
Zambia, being a former colony of England, is a common law

jurisdiction. This is supported by the history of the country as
well as by the current statutory guidelines and judicial
35
Harchard and Ndulo, The Law of Evidence in Zambia: Cases and Materials. Lusaka: Multimedia (1985), p. 1.
declarations.36 There are different definitions of the Common
Law. Section 3 of the Interpretation and General Provisions
Act37 defines common law as the Common Law of England.38
The learned authors of Megarry’s Manual of the Law of
Real Property have observed that the law of Real Property is
part of the Common Law of England and further that the phrase
‘common law’ or ‘at law’ is employed in three senses, viz;
(i) in contrast with local custom;
(ii) in contrast with statute law;
(iii) in contrast with equity.39
According to the learned authors, ‘the third is the most usual
sense, the second less, the first comparatively rare; the context
will normally make it plain what is meant.’40
The learned authors have further observed that:
The Common Law affecting Real Property has in

course of time been profoundly affected by equity,
and today most questions on real property law fall
for decision in the Chancery Division of the High
Court; yet this is merely a procedural arrangement
which must not be allowed to obscure the common
law basis of the law of real property, though much
affected by statute.41
Megarry and Wade have observed, in relation to England, that

although the content of the law of real property is increasingly
statutory, it is however in no sense a statutory code and therefore
that it is still essential to have an understanding of the substratum
of common law and equitable principles upon which the statutory
framework has been overlaid together with some grasp of the
way in which the subject has developed historically.42 This
observation applies with equal force to Zambia. Most of the
statutory enactments relating to land in Zambia were adopted
from England and/or have their textual roots in the colonial era.
36
Church, W.L., ‘The Common Law and Zambia’, in Ndulo, M. (ed.), Law in Zambia. East African Publishing
House Ltd (1984) p. 1
37
38
See section 3 of Chapter 2 of the Laws of Zambia.
39
40
Ibid.
41
Ibid., at p. 3.
42
1.2.3 Principles of Equity
Equity may be defined as that body of law or principles that was

developed and applied in the Court of Chancery in England, in
order to mitigate the harshness of the common law. Certain
rights could be enforced in the common law courts and these
were known as legal rights. Some rights were not protected by
the common law courts, but later came to be protected by the
Court of Chancery if it deemed it equitable to do so. These
rights were known as equitable rights.43 By the Judicature Act
of 1873, the courts of Law and Equity were fused into one
Supreme Court divided into a High Court and Court of Appeal.
In spite of the fusion of courts of law and equity, law and equity
have still remained distinct.44 It has been observed that it was in
the realms of property law that equity made its greatest
contribution.45 The intervention of equity will be seen in some
of the chapters under Part I of this book
1.2.4 Customary Law
The law that existed in Zambia before the advent of colonialism

was the (unwritten) indigenous law of the tribes. This is generally
referred to as customary law. Customary law has no uniform
application in Zambia, but varies from tribe to tribe or locality to
locality.46 Customary law may be resorted to in the settlement
of disputes involving members of the tribe. As regards land law,
customary law as a source of law still plays a vital role in the
settlement of land disputes that may arise under land held under
customary tenure. The law that generally governs customary
tenure in Zambia is the customary land law of the area or district
where the land is situate.
The Lands Act47 recognises customary land law in a number
of provisions or sections.48 Customary law is recognised as
applicable to the country by virtue of section 16 of the Subordinate
Courts Act,49 provided that such customary law is not repugnant
43
Legal and Equitable interests in land are covered under chapter 8 of this book.
44
45
William, H., Land Law (3rd ed.). London: Sweet and Maxwell (1994), p. 10.
46
Ndulo, M., ‘The Changing Nature of Customary Marriage in Zambia,’ in Ndulo (ed.), Law in Zambia. East
African Publishing House Ltd (1984), p. 143.
47
Supra note 21.
48
See for instance section 3 (4) which provides that the president shall not alienate land situate in a customary
area without taking into consideration the local customary law on land tenure..., See also section 4 (1) of
the Act and section 3 of The Lands (Customary Tenure) (Conversion) Regulations – Statutory Instrument No.
89 of 1996.
49
to justice, equity or good conscience and is not incompatible,
either in terms or by necessary implication, with any written law
in Zambia. The Local Courts Act50 does also recognise the
application of customary law to any matter before it, in so far as
such law is not repugnant to natural justice or morality or
incompatible with the provisions of any written law. 51
1.2.5 English Statutes
1.2.5.1 English Statutes Applicable to Zambia by Virtue of the

English Law (Extent of Application) Act
The vagueness of the English Law (Extent of Application) Act

has already been alluded to above under section 1.2.2 of this
chapter by way of a critique by Hatchard and Ndulo. The Act is
unhelpful as to which pre-1911 English statutes are applicable
to Zambia. Be that as it may, in terms of land law in Zambia, the
Statute of Frauds 1677, the Conveyancing and Law of Property
Act 1881 – 1911, the Distress for Rent Act, 1689, the Law of
Distress Amendment Act, 1888, are some of the well known
pre-1911 English statutes that are applicable to the Republic.
The Statute of Frauds is covered under chapter 9 of this book.
In The People v. Shamwana and Others,52 the High Court
(Chirwa J, as he then was) held, inter alia, that the English
Law (Extent of Application) Act is an enabling Act in that in the
absence of any legislation in Zambia on any subject, English
statutes passed before 17th August 1911 will apply in Zambia.
1.2.5.2 English Statutes Applicable to Zambia by virtue of the

British Acts Extension Act
The preamble to the British Acts Extension Act53 provides, that

it is:
An Act to provide for the extension or application

of certain British Acts to Zambia; and to provide
for amendments to certain British Acts in their
application to Zambia.
50
51
Section 12 of the Local Courts Act; see the case of Kaniki v. Jairus (1967) ZR 71.
52
(1982) ZR 122.
53
Supra note 17.
Section 2 of the Act provides that the Acts of the Parliament of

the United Kingdom set forth in the schedule thereto shall be
deemed to be of full force and effect within Zambia.
The British Acts set forth in the schedule under the Act and
which apply to Zambia are:
(i) The Conveyancing Act, 1911;
(ii) The Forgery Act, 1913;
(iii) The Industrial and Provident Societies (Amendment)
Act, 1913;
(iv) The Larceny Act, 1916;
(v) The Bills of Exchange (Time of Noting) Act, 1917;
(vi) The Married Women (Maintenance) Act, 1920;
(vii) The Gaming Act, 1922;
(viii) The Industrial and Provident Societies (Amendment)
Act, 1928;
(ix) The Limitation Act, 1939; and
(x) The Law Reform (Enforcement of Contracts) Act,
1954.
The only statutes from the list mentioned above that may have
direct relevance to land law are, the Conveyancing Act, 1911
and the Limitation Act of 1939.54 Section 4 of the English
Limitation Act provides for the period of limitation in terms of
an action for recovery of land. Section 4 (3) of the English
Limitation Act provides that:
No action shall be brought by any other person to

recover any land after the expiration of twelve
years from the date on which the right of action
accrued to him or, if it first accrued to some person
through whom he claims, to that person.
1.2.5.3 Judicial Precedent
Like most other countries formerly tied to England as colonies

or protectorates, Zambia is recognised as a common law
jurisdiction.55 The common law system is based on the doctrine
of judicial precedent or stare decisis. The doctrine of judicial
precedent simply means that the courts do adhere or follow
their past judicial decisions.56 Through the system of binding
54
The Law Reform (Enforcement of Contracts) Act, 1954 amended part of section 4 of the Statute of Frauds and
also repealed section 4 of the Sale of Goods Act, 1893.
55
56
Ibid.
precedent, the courts become a source of law in that in their
interpretation of the statutes or laws they create binding judicial
precedents.
Under the common law system, the lower courts are bound
by the decisions of higher courts. In Kasote v. The People,57
the Supreme Court held, inter alia, that:
(i) The principle of stare decisis is essential to a

hierarchical system of courts. Such a system
can only work if, when there are two
apparently conflicting judgments of the
Supreme Court, all lower courts are bound by
the latest decision.
(ii) The Supreme Court being the final court in
Zambia adopts the practice of the House of
Lords in England concerning previous
decisions of its own and will decide first,
whether in its view the previous case was
wrongly decided and, secondly, if so, whether
there is a sufficiently strong reason to decline
to follow it.
1.2.5.4 Textbook Writers
Textbooks may also be recognised as sources of land law. For

example, Megarry’s Manual of the Law of Real Property
has been and is widely cited and relied on by both the legal
practitioners and the courts not only in England but also in
Zambia.
1.3 The Two Basic Doctrines of English Land Law
There are two basic doctrines of English land law. These are
the doctrines of tenure and estates.58 These two basic doctrines
of English land law are crucial to the understanding of our land
law in Zambia. This is because our land law concepts especially
under statutory tenure and indeed a number of statutes are mainly
derived from or have their textual root in the English (land) law
and/or statutes. The colonial administration brought in English
law in the then Northern Rhodesia territory following the advent
of colonialism.
57
(1977) ZR 75.
58
Supra note 7, at pp. 23-27.
1.3.1 The Doctrine of Tenure
The word tenure, from the Latin tenere (to hold) implies that
land is ‘held’ under certain conditions. From the time of the
Norman Conquest in 1066 English land law adopted the
continental system of feudalism i.e., hierarchy dominated by a
sovereign or chief and based on mutual promises of protection
and military service.59
William the conqueror (1066 – 87) regarded the whole of
England as his by virtue of conquest and granted land not by out
and out transfer but to be held of him as overlord. Persons holding
land of the Crown might then grant land to another (sub
infeudate) to hold of him in return for services. The feudal pyramid
that was constructed was based upon the land tenure system;
the tenure of the land identifying the conditions on which land
was held. Tenure was the main bond holding society together;
the lord protected those who held land of him. 60
From the time of the Norman conquest, a theory of the
common law developed that all land in England was held of the
crown and that subjects may hold land directly or indirectly of
the crown. According to the doctrine of tenure, all land in England
is held of the crown, either directly or indirectly on one or other
of the various tenures.61 The excerpt below by Okon62 does
‘summarise’ the development of English land law and its doctrine
of tenure from the time of the Norman conquest in 1066 up to
the time of the major land law reforms in 1925.63
The outstanding feature of the English Land Law,

and one which explains many of its peculiarities, is
that at least from the time of the Norman conquest,
it fell into line with the continental systems and
became and remained feudalistic. Maitland has
tried to paint the picture of what feudalism
represents to a lawyer. It is: a state of society in
which the main social bond is the relation between
lord and man, a relation implying on the Lord’s part
protection and defense; on the man’s part
protection, service and reverence, the service
including service in arms. This personal service
59
60
Ibid.
61
62
63
Ibid.
or relation is insuperably involved in a proprietory
relation, the tenure of land – the man holds of the
lord, the man’s service is a burden on the land, the
lord has an important right in the land.
The system, to say the least, was a negation of
liberty. It implied subordination. It meant that one
man was inferior to another. Stubbs in his
Continental History described the system as:
A graduated system of jurisdiction based

on land tenure, in which every lord
judged, taxed, and commanded the class
next below him ... in which private
coinage, private persons took the place
of the imperial institutions of government
One of the effects of feudalism in Europe and in

England in particular was that from a legal point of
view; land became the exclusive bond of union
between men. Individual and communal land
ownership was destroyed. The ownership of the
whole of the land in any given district was vested
in the overlords, and the persons who had formerly
owned it in their own right now held it of the
overlord. In return for the land which they held,
they were bound to render services, chiefly of a
military nature, to the overlords, while the latter in
their turn were bound to protect the tenants.
Consequently, there arose a process of
‘sub-infeudation’ which brought about a lot of
confusion and complications in land tenure such
that it was not easy to know who actually owned
the land at any particular time because of the long
hierarchy of lords and overlords, tenants and
sub-tenants it created.
Quia Emptores of 1290
However, changes were under way. In the year

1290 the statute Quia Emptores was enacted,
which abolished the practice of sub-infeudation.
The importance of the statute was that it altered
land law in two particular respects. First, it settled

the controversy and allowed every freeman the
liberty of alienating his land without the consent of
the overlord. Secondly, it encouraged substitution
of the tenant, i.e., it enacted that every alienee
should hold land of the same lord of whom the
alienor previously held. The statute Quia Emptores
was indeed landmark legislation in the history of
land law in England. Its chief virtue was that it led
to the gradual disappearance of the numerous petty
landlords that had arisen.
Tenure Abolition Act of 1660
The most vexing aspects of the medieval feudal

system of land holding were the forms of tenure
and the incidents of such tenures. Tenure depended
for its form on the particular services owed by the
tenant. Tenures existed in the following modes at the
time of Edward 1:
(a) Free tenures
These consisted of Knight Service, serjeanties,
spiritual tenure, free socage. These services were
considered to be rendered freely.
(b) Unfree tenures or copyholds: These were types
of villain tenure and involved services of a service
nature
(c) Customary tenure
Examples of this were gavel kind and borough
English. The important form of free tenure under
feudalism was the knight service. It was based on
military service in return for the grant of land. The
tenants-in-chief were required, in return for land,
to serve the sovereign. This service included the
provision of armed horsemen. In the mid-twelfth
century however, money payment was accepted
by the King from the tenant-in-chief instead of
service in the form of production of the fixed quota
of Knights.
Most incidents-of knight service were extremely
cumbersome and burdensome, and their exaction
was responsible in large measure for the social
unrest which culminated in the court granting of
magna carta in 1215. These incidents included
homage, suit of court, aids, relief, wardship,
marriage, escheat and forfeiture.
With the growth of money payments and the
general burdensome nature of these incidents,
knights service and its incidents were abolished
under the Tenure Abolition Act of 1660. However,
a call for reform in English land law did come
before Parliament both in 1922 and in 1925. The
result of six hundred years of development from
the feudal origin was that land law contained so
many antiquated rules and technicalities that
additional and unnecessary impediments had arisen
to hinder the facile transfer of land. Land law as it
existed in the 1920s might justly be described as
an archaic, feudalistic system which, though
originally evolved to satisfy the social needs of the
society, had by considerable ingenuity been twisted
and distorted into a shape more or less suitable to
a commercial society dominated by money. The
movement of progressive societies, we must
remember, has been from land to money. Hence
sweeping reforms in land law were effected. For
instance, many anachronistic rules and doctrines
in land law were cleared away, tenures were
reduced in number, the rules governing real and
personal property were closely assimilated, and
above all, conveyancing was simplified in particular
by the reduction in number of estates.
Law of Property Act, 1925
One of the most important social changes brought

about by land law even in recent times has been
the ease and rapidity with which land can and does
change hands in England today. This important
swing from non-alienation to a Laisses-faire policy
was ushered in by the Law of Property Act, 1925
which completely altered the lifestyle and social
outlook of the Britons. Thereafter, people found it
easy to dispose of their landed property and move
from one part of the country to another or from
one part of a city to another, thereby making way

for the mobility of people and labour at the same
time. This mobility of labour paved the way for the
rise in the number of professionals, artisans,
trademen and others in the society. Another
significant change brought about through the
instrumentality of land law was the breakdown in
the old rigid concept of social stratification. English
society was rigidly stratified along certain lines.
There were, for example, the commoners, the
middle class, the upper middle class and the upper
class. It was difficult to climb from one social group
to a higher one. But with the easy alienability of
land, the status symbol of wealth in the society,
people acquired as much landed property as they
wanted and thus could move up the social ladder.
People of low birth easily became peers, lords or
barons because of their wealth.
1.3.2 The Doctrine of The Estates
The doctrine of tenures dealt with the conditions on which land

was held. The doctrine of estate is concerned with the length of
time for which land is held. The doctrine of estates provides
that a subject cannot own land, but can merely own an estate or
interest in it, authorising him to hold it for some period of time.64
Tenure answers the question ‘how is land held?’ the estate the
question ‘for how long?’65
Because all land in England is held of the Crown, English
law has developed the concept of the estate which has its
emphasis on the right to possession.66 An estate is an interest in
land of defined duration. It is an abstract entity which represents
the extent of a person’s rights to possession.67
There are two principal categories of estates, namely, freehold
estates and estates less than freehold or leasehold. A freehold
estate is one whose duration though fixed is uncertain whereas
an estate less than freehold or leasehold is one for a period
whose duration is fixed or is capable of being fixed.68
64
Ibid.
65
66
67
Ibid.
68
Ibid., at p. 7.
1.3.2.1 Freehold Estates
There were three estates of freehold at common law, viz.: fee

simple, fee tail and life estate. All the three estates had one
thread in common, namely, that the duration of the estate was
fixed though uncertain. In Zambia, English land law and its
concepts were ‘imported’ into the Northern Rhodesia territory
by the colonial administration. While African customary law
regulated land under customary tenure, the land in crown land
(which was set aside for white settlements) was regulated by
English land law. The interests created in crown land were those
known to English law. These are estates and tenures. Estates
and tenures could either be freehold or leasehold. Freehold estate
(together with leasehold estate) continued to exist in Zambia up
to 1975 when by virtue of the Land (Conversion of Titles) Act,69
all freehold estates were converted to a renewable leasehold
estate of 100 years effective, 1 July 1975. The freehold estates
are briefly discussed below.
(i) Fee Simple Estate
This is the largest estate in terms of duration and is as near to

‘absolute ownership’ as it is possible to achieve.70 The word
‘fee’ denotes inheritability, ‘simple’ indicates that the estate is
inheritable by general heirs, i.e., ascendants, descendants or
collateral.71 The fee simple is virtually everlasting in that it
continues as long as the person entitled for the time being has
heirs at his death. The owner of a fee simple estate had, at
common law, unfettered power of alienation inter vivos or by
will.
(ii) Fee Tail
A fee tail estate is an inheritable estate which lasts as long as

the original grantee or any of his descendants live.72 The terms
‘fee tail’, ‘estate tail’ ‘entail’ or ‘entailed interest’, are often
used to describe the same estate. A restriction on the line of
descendants to the male or female species only could be created
by a ‘fee tail female’ or a ‘fee tail male’.
69
Since repealed by the Lands Act of 1995 – The Land Conversion of Titles Act is covered in chapter 12 of this
book.
70
71
Ibid.
72
Ibid.
The fee tail estate existed in Zambia up to 1944, when it was

abolished by virtue of an amendment to section 31 of the Lands
and Deeds Ordinance (which at independence became an Act).
Section 31 (2) of the Lands and Deeds Registry Act73 now
provides that:
From the 1st May, 1944, an estate tail shall cease

to exist in Zambia for all purposes, and all land
held on an estate tail shall become land held in fee
simple by the tenant in tail, and all words in any
document after such date purporting to create an
estate tail shall be deemed to create an estate in
fee simple.
(iii) Life Estate
This estate is self-explanatory. An estate for life is one limited in

its inception to the life of the tenant. It was the grant of an
estate to the grantee for his life. The estate subsisted as long as
the grantee lived. A life estate is not an estate of inheritance.
On the death of the tenant the estate determined and reverted
to the overlord.
An estate pur autre vie (for the life of another) was a species
of life estate where the right to the estate exists for the duration
of someone else’s life. If the duration of the estate was for
more lives than one it was often termed ‘a lease for lives.’ A
grant of a portion of land ‘to X as long as Y lives’ would create
such an estate which terminates on Y’s death.
Section 31 (1) of the Lands and Deeds Registry Act provides
for tenants for life and tenants in tail. The section provides that:
(1) A grant of land for a life or lives shall, for the

purposes of Parts III to VII, be deemed to be
a leasehold held from the person entitled to
the reversion or remainder immediately
expectant upon the termination or expiration
of the life estate created by such grant.
73
Supra note 22.
1.4 Estates Less Than Freehold (Leasehold or Term of

Years)
The leasehold estate or lease, as we know it today, was originally

not recognised as an interest in land. The three estates of
freehold, discussed above, were the only estates recognized and
protected at common law.74 Leaseholds were brought into the
estate system in the 16th century by which time they had been
recognised as legal estates and were fully protected by the
Common law courts.75 Estates less than freehold now comprise
various forms of leasehold including:76
(a) A lease for a fixed term of certain duration e.g., a lease
for three months, 100 years or 999 years.
(b) A lease the duration of which is capable of being
rendered certain e.g. a grant of tenancy to X from year
to year.
(c) A lease for an uncertain period of uncertain duration “a
tenancy at will”. A tenancy at will is a tenancy which
may continue indefinitely or may be determined by either
party at any time.77
The excerpt below from Maudsley and Burns’ Land Law: Cases
and Materials, aptly summarises the nature of the two forms
of estates discussed above.
Freehold estates, i.e. the estates held by freehold

tenure, are those which were in use in the feudal
system. In medieval times that system was the
basis of the social, military and economic structure
of the state: and the holding of freehold land was
itself the basis of social position, wealth and power.
It was essential for the security of the state and of
the social structure that the ownership of freehold
estates should be protected; and it is not surprising
that the land law was the first of the fields of private
law to be undertaken by the King’s Court.
The freehold estates are the fee simple, fee
tail, life estate and estate pur autre vie. They are
freehold because they were recognised by the
feudal order, because persons holding such estates
74
75
Ibid.
76
Ibid., at pp. 30 and 31.
77
Ibid.
in possession were recognised as standing upon a

rung in the feudal ladder, and because the remedies
available in the King’s Court were available to the
owner of such an estate and gave a claimant
specific recovery. Such estates are ‘real property’
or ‘realty’, and are contrasted with the term of
years, a leasehold estate whose owners were never
on the feudal ladder; they could not protect
themselves by the same actions as the freeholder;
their estate as personal property ‘personalty’,
passed on intestacy with chattels. A convenient
way of distinguishing between freeholds and
leaseholds is to note that freeholds are always of
indefinite duration, leaseholds for a fixed period or
such as can be made certain. But this is just a
label; it does not help to understand the basic gulf
between the two, which was so obvious to the
medieval lawyer.78
1.5 Estates in Possession, Remainder and Reversion:

Successive Interests in Land
One consequence of the concept of the ‘estate’ was that the

law allowed various smaller and simultaneous estates to be
carved out of the fee simple estate. Successive ownership of
land occurs when one person has an estate in the land for life
and another, or others, have rights which ‘fall into’ possession
after the life interest has ended.79
At common law it was once quite common for property to
be left to one person for his life, then to another, and so on as
where longacre is left to John for life, with remainder to Peter
for life, remainder to Andrew in fee simple. In such a case, John
has a life interest in possession, Peter has a life interest in
remainder, and Andrew has fee simple in remainder (and will
become the absolute owner on the death of Peter and John.)
An estate in possession is one where a present right to
immediate enjoyment is given, i.e., where there is no preceding
estate to postpone enjoyment. In the above example the estate
of John is in possession. Where land would revert back to the
original grantor, then the grantor had an estate in reversion so
that if for instance, longacre was conveyed by Simon ‘to Stephen
78
Maudsley and Burn’s Land Law: Cases and Materials (5th ed.). London: Butterworths (1986), p. 4.
79
for life,’ then the estate of Simon is a reversion. In the grant to
John for life, Peter for life, Andrew in fee simple, the estates of
Peter and Andrew are estates in remainder, i.e., they do not
have a present right to actual enjoyment, their right to possession
being postponed to the future. The estate of John being in
possession is known as a particular estate.
Section 60 of the Lands and Deeds Registry Act provides
for the creation of various estates. The section provides that:
(1) The Registered Proprietor of land in respect

of which a Provisional Certificate or a
Certificate of Title has been issued may
(a) make a transfer to himself jointly with any
other person or persons; and
(b) create or execute any powers of
appointment, or limit any estates, whether
by remainder or in reversion, and whether
contingent or otherwise, and for that
purpose may modify or alter any form of
transfer hereby prescribed.
(2) In case of the limitation of successive interests
as aforesaid, the Registrar shall cancel the
Provisional Certificate or Certificate of Title
evidencing the title of the transferor, and shall
issue a Certificate in the name of the person
ultimately entitled to the estate in remainder or
reversion directly under the President (whether
freehold or leasehold) for such estate as he is
entitled to, and the persons immediately and
subsequently successively entitled in
possession shall be registered as leaseholders
according to the limitations in their favour.
The above section has to be read in the light of the Trust

Restriction Act80 of 1970 which is discussed below. In a nutshell
the said Act has restricted the creation of settlements and future
interests envisaged under section 60 (1)(b) of the Lands and
Deeds Registry Act.
80
Chapter 63 of the Laws of Zambia. This Act was enacted much later than the Lands and Deeds Registry Act
which was promulgated as an Ordinance in 1914.
1.5.1 Future Interests vis-a-viz The Trust Restriction Act.81
In the above example the estates of Peter and Andrew are

future interests. Peter and Andrew are ready to take possession
(of course at different times) but cannot do so because of the
existence of an earlier interest. A contingent interest or gift is a
future interest which gives no right at all unless and until some
future event occurs and the specified conditions have been
satisfied.82 If longacre was given to ‘John for life, Peter for life,
remainder to Andrew in fee simple if he became a lawyer’ then
the nature of gifts are:
(a) John has an interest vested in possession i.e., he has a
present right to present enjoyment. This is not a future
interest and was not affected by the perpetuity rule at
common law.
(b) Peter has an interest, vested interest i.e., where a gift
gave a present right to future enjoyment it was vested
for the purposes of perpetuity.83 In this case Peter is
ready to take possession but is merely postponed by
the existence of an earlier interest. The importance of
the difference between vested and contingent gifts is
that if it was vested then the gift automatically took
effect, whereas if it is contingent then its operation was
uncertain and at common law it could be declared void
for perpetuity.84
The origin of the perpetuity rule could be traced to
the 13th century where the principle was developed that
property should not be rendered inalienable.85 The rule
was devised to prevent land being tied up for excessive
period in settlements i.e., in succession or under
successive ownership such as under the examples given
above. All types of future interests were therefore made
subject to important rules limiting the period for which
a settlor (one who makes a settlement) could exercise
control over the property even in his death.
The development of the perpetuity rule was initially
common law based culminating in the House of Lords
decision in Cadell v. Palmer.86 The court felt that
81
Supra note 33.
82
Supra note 45 at p. 101.
83
Ibid., at p. 100.
84
Ibid.
85
Supa note 82.
86
[1833] I Cl & Fin 372, 10 Bling 140.
there had to be limits on a landowner’s powers of
disposition otherwise, a tyrannical testator could tie up
the future enjoyment of his land and destroy the powers
of disposition. There was also the consideration that if
land was tied up then there would be no one capable of
ensuring that the land was used to the fullest advantage,
and the country’s economy would suffer accordingly.87
The perpetuity rule may simply be stated thus:
Any future interest in any property is void

from the outset if it may possibly vest after
the perpetuity period has expired. The
perpetuity period is 21 years after the
death of a life or survivor of a number of
lives, plus any period of gestation.88
The Trust Restriction Act, which came into force on 24

December 1970, provides in its preamble that it is: ‘An Act to
restrict the creation of settlements, trusts and future interests.’
In presenting the Trust Restriction Bill in the national assembly
the learned Attorney-General, the late Mr Fitzpatrick Chuula
had this to say by way of trying to justify the enactment of the
Act:
Mr Speaker, Sir, the primary purpose of this Bill is

to prevent property, whether real or personal, being
tied up for long periods, which can run into many
generations. The policy of the government is to
ensure the maximum utilisation of the wealth of
the country and thereby stimulate economic growth.
To achieve this end it is necessary to restrict the
creation of private trusts, settlements and future
interests. These devices have throughout history
been used to limit the power of alienation of
property, with the result that the property has been
tied up in perpetuity.
This problem has over the centuries given rise
in England to various legislative devices and various
judge-made rules, such as the rule against
perpetuities. These are still being developed to meet
87
88
this problem. We do not wish to see our society a

class of persons who make no material contribution
to the national output, but live entirely on the income
of settled property. Before dealing in detail with
the provisions of the Bill, I wish to stress one point
very strongly. This Bill will not restrict the right or
ability of any individual to make a will giving his
property to his wife or his children, or indeed to
any persons to whom he may wish to give it. This
Bill only prevents a person tying up his property by
way of trust, a settlement or the creation of a future
interest, so that the beneficiaries receive only the
income, but cannot touch the capital.89
Section 2 of the Act defines property to include ‘real and personal

property and any estate or interest therein.’
Section 2 further defines a settlement to mean:
any disposition whereunder any property stands

for the time being limited to or in trust for any
persons by way of succession, and ‘settle’ and
other cognate expressions shall be construed
accordingly;
A minor is defined under the section to mean: ‘a person in being

under the age of twenty-one years;’
Section 3 of the Trust Restriction Act provides for restrictions
on creation of settlements, trusts and future interests. The section
provides that:
Save as hereinafter provided, after the

commencement of this Act a person shall not-
(a) settle any property; or
(b) limit any property in trust for another; or
(c) make any disposition whereunder property
vests in possession at a future date.
Section 4 provides for the exceptions to the general rule laid

down under section 3. The section provides that:
89
See Hansard No. 24 (B), Wednesday, 9 December 1970.
4. Nothing in this Act shall apply to-
(a) a disposition whereunder property is limited to,
or in trust for, a minor on his attaining a specified
age not exceeding twenty-one years;
(b) a disposition whereunder property is limited to,
or in trust for, a widow, either for her life or for
some other period, with a gift over in favour of
children, if such disposition contains a provision
that on the re-marriage of the widow the
property shall forthwith vest beneficially in such
children.
For the purposes of this paragraph, ‘child’ means-
(i) a child of the marriage; or
(ii) a child of either of the parties to the
marriage; or
(iii) an adopted child, a step-child or an
illegitimate child of the parties to the
marriage or either of them;
(c) a disposition in favour of a charity;
(d) a trust in favour of or for the benefit of a person
of unsound mind or a minor;
(e) a trust for the purpose of the administration of
the estate of a deceased person, to the extent
that any will of such deceased person does not
offend against the provisions of this Act;
(f) a trust for the purpose of the administration of
the property of a person adjudged bankrupt or
a body corporate in liquidation or a person who
has entered into a deed of arrangement for the
benefit of his creditors;
(g) a trust for the purpose of the administration of
enemy property;
(h) a trust for the purpose of the operation of a
pension, superannuation or similar scheme;
(i) a trust terminable at the will of the beneficiary.
Section 5 provides for the effects of a disposition in contravention

of the Act. The section provides that:
Subject to the provisions of section four, and

notwithstanding anything to the contrary contained
in any other law, after the commencement of this
Act-
(a) a settlement shall have effect as a disposition

in fee simple or absolutely, as the case may
be, to the tenant for life;
(b) a trust shall have effect as a disposition in fee
simple or absolutely, as the case may be, to
the beneficiary;
(c) a disposition whereunder property vests in
possession at a future date shall be ineffective
to create or vest any such interest.
Section 6 deals with those settlements that were in existence at

the time of the commencement of the Act i.e., 24 December
1970. The section provides that:
(1) Where at the commencement of this Act property is

held under an existing settlement or trust, or a
disposition is in existence whereunder property
vests in possession at a future date, such settlement,
trust or disposition shall be deemed to have been
made after the commencement of this Act and
accordingly the provisions of section five shall apply:
Provided that in any such case the persons, if any,
whose future interests, whether vested or
contingent, have been extinguished by virtue of this
section shall be entitled to compensation as
hereinafter provided.
(2) Any person claiming compensation under subsection
(1) may, in default of agreement between the
interested parties, make application to the Court:
Provided that any such application shall be made
within one year after the commencement of this
Act.
(3) Any compensation agreed upon or ordered by the
Court to be paid shall be by way of periodic
payments or a lump sum payment or a combination
of such payments, and shall be made by the person
in whom the property has been vested by virtue of
the provisions of section five.
(4) In determining the amount of compensation, the Court
shall take into account all relevant circumstances
including, but without derogating from the generality
of the foregoing:
(a) the annual value of the interest extinguished;
(b) the probability of any contingency;
(c) the life expectancy of any interested person;
(d) the cost of purchasing an annuity for any
relevant period.
From the provisions of section 3 it is clear that there is, inter

alia, a general restriction on creation of future interests.
The exception under section 4(b) of the Trust Restriction
Act is usually a common provision under most Men’s wills. The
provision is clearly discriminatory in favour of men in that it
allows a man, by implication, to remarry without losing the
property left by his deceased wife under the will for his benefit
when the opposite is not the case. Section 9 of the Intestate
Succession Act,90 is not discriminatory in case of devolution of
property on remarriage of the surviving spouse. Section 9 of the
Intestate Succession Act creates an element of a life interest as
well as a future interest.
The section provides that:
(1) Notwithstanding section five where the estate

includes a house the surviving spouse or child
or both, shall be entitled to that house:
Provided that-
(a) where there is more than one surviving
spouse or child or both they shall hold
the house as tenants in common; and
(b) the surviving spouse shall have a life
interest in that house which shall
determine upon that spouse’s remarriage.
In drafting wills, the provisions of the Trust Restriction Act have

to be strictly observed or adhered to especially in attempting to
create contigent and/or future interests. Any provision under a
will granting a contigent or future interest in a property outside
the exceptions provided for under the Act would be void to the
extent of the contravention or inconsistency.
90
1.6 Is There an Equivalent of The Doctrine of Tenure Under

Customary Tenure in Zambia?
It has been observed under section 1.3.1 above, dealing with

the doctrine of tenures, that in return for the grant of land by the
Crown, the subject had to perform certain services. In other
words the performance of the services to the Crown or overlords
was a condition upon which the land was held. A question that
may be posed here is whether under African Customary tenure
in Zambia there is any equivalent or similarity to the position, or
situation that obtained during the medieval period in England.
It is now generally agreed that chiefs under customary tenure
have no allodial ownership of land similar to the Crown in
England.91 Though sometimes loosely referred to as owners of
land, chiefs in Zambia merely exercise control functions over
land. A question that may be posed here is whether or not subjects
are expected to perform or render certain services to their chiefs
as a condition for the grant and continued holding of the land.
According to a research carried out on behalf of the Catholic
Commission for Justice and Peace [CCJP],92 it was found that
in some parts of the Copperbelt and Luapula provinces of Zambia
the subjects had to provide or perform certain services to their
chiefs, including payment of money, as a condition for the grant
and continued ownership and holding of the land. For instance,
under Senior Chief Mushili’s area in Ndola rural the subjects
bitterly complained of the practice of paying farm produce and/
or money every year (usually after harvest) to their Senior Chief.
‘When the Chief is on tour we are required to pay K15,000 and
a tin of maize, is it in order?’ one person in Kanonge area under
Chief Mushili commented. ‘When you don’t take something to
the Chief you are chased from the land,’ another man pointed
out.93 Another person at Mishikishi lamented ‘I did not pay
loyalties in 2001, because I did not have food or money and I
told the Sulutani [village headman], but after sometime he came
to insult me and told me to move away from the house and land
where I had a farm……right now I don’t have a place to stay
or farm.94’ After some probing questions from the author, it
transpired that the gentleman was a ‘settler’ having originated
from Eastern Province of Zambia and found the practice of
91
See generally chapter 20 of this book dealing with the African Concept of land tenure.
92
Muyakwa, S.L., M.M. Munalula and F.S. Mudenda, ‘the Impact of the Lands Act 1995 on the livelihood of the
poor and peasants in Zambia,’ February 2003.
94
Ibid.
95
Ibid., p. 31.
paying ‘royalties’ to the Senior Chief unpalatable and
unacceptable to him.
The CCJP report generally observes in relation to the places
visited in Chief Mushili’s area that people, especially the ‘settlers’
or ‘non-locals’ lived in constant fear of losing their land and
most of them preferred to have title deeds through converting
their interest in customary land into leasehold.
In chiefs Mabumba and Chimense’s areas of Mansa district
in the Luapula Province, the practice of paying some form of
royalties was similar as that observed in Senior Chief Mushili’s
area.
In Chief Mabumba’s area one person lamented:
There is corruption in the allocation of land here,

because for you to be allocated land by the chief,
you need to pay K20,000 - K25,000, a bag of mealie
meal, and two chickens. If you don’t pay those
things, then you are chased away from the land.
We want the system to change because us with
title deeds pay double.95
The case excerpted below demonstrates the role of traditional

authority in the allocation of land in the Western Province of
Zambia. Its interesting aspect, in relation to the doctrine of tenure
discussed above, is the making of obeisance (Kushowelela) to
the Litunga, as some form of condition for the grant of land.
The case also illustrates customary law as a source of law.
1.7 Case Law
Mukelebai v. Widmaier Supreme Court Appeal No. 116 of 1995
[The facts of the case appear from the Judgment of the Supreme
Court delivered by NGULUBE, CJ, as he then was]
For convenience, we will refer to the parties by their

designations at the trial; the appellant as the plaintiff and
the respondent as the defendant. The plaintiff brought
proceedings against the defendant in which he asked the
court to nullify the grant of a piece of land in Mongu to
the defendant by the Lozi Royal Establishment and to order

cancellation of a Certificate of Title issued to the defendant
in respect of the same land by the Commissioner of Lands.
The plaintiff claimed that the piece of land granted to the
defendant was in fact an integral part of a ten acre plot of
land which had already been granted to him in 1975. He
had gone through all the necessary procedures under Lozi
custom, culminating in making obeisance (Kushowelela)
to the Litunga. He said he had applied for a Certificate of
Title to part only of this piece of land to facilitate borrowing,
leaving the rest or the plot unsurveyed and available should
a lender take away the piece with the Certificate of Title.
The plaintiff further claimed that it was contrary to the
law applicable at the time, that is, the Zambia (State Lands
and Reserves) orders 1928 - 1964 to grant land in a
Reserve to a non-native inhabitant. Another point raised
(which it transpired was in fact common ground) was
that under Lozi customary law, land granted to a subject
by one Litunga cannot be taken away by a subsequent
Litunga.
The defendant’s case was that being desirous of
procuring land on which to construct workers’ houses for
his carpentry and joinery business, he too went through
all the requisite procedures starting with an approach to
the area chief and culminating with a Certificate of Title
with the blessings and consent of all the elevant traditional
and State authorities. At an early stage, the traditional
authorities convened a meeting at the affected site with
all the neighbours: the plaintiff attended and raised
objection, claiming the piece of land as his and he was
contradicted by two Indunas sent from the Royal
Establishment who happened to have been present at the
time when the plaintiffs’ own piece of land was
demarcated.
The plaintiff sued and lost in the traditional courts. He
then launched these proceedings and lost in the High Court.
The learned trial Judge determined that the issues to be
resolved were whether the land given to the plaintiff by
the Litunga in 1975 included the disputed piece now
occupied by the defendant; whether the present Litunga
had not wrongfully dispossessed the plaintiff, contrary to
Lozi customary land law; whether the plaintiff’s land was
clearly delineated; whether the plaintiff had adduced
sufficient evidence to establish that the land now held by
the defendant was part of the land given to him by the
Litunga in 1975; and whether it was contrary to law to
grant land in a reserve to the defendant, a German national.
The learned trial Judge found against the plaintiff who
has appealed to this Court.
We heard elaborate arguments and submissions. We
also received detailed written heads of argument. In the
view that we take, the point was not what the Lozi
Customary law of land acquisition is and about which there
was no dispute as such. The true point was what land had
been given to the plaintiff and whether this included in
extent the piece of land subsequently given to the
defendant. The learned trial Judge clearly recognised this.
In analysing the evidence, the Judge observed that both
the Litunga and the area Chief Libumbu who were
involved in the grant to the plaintiff were deceased but
that one at least of the lndunas sent to demarcate the
plaintiff’s land was still alive and had attended the meeting
to demarcate the defendant’s plot. This was Induna Inguu
who contradicted the plaintiff’s claim at the meeting. The
defendant had deposed in his evidence that there were in
fact two Indunas at the meeting who had also participated
in the earlier exercise of demarcating the plaintiff’s land.
The Court observed that apart from his own word, there
was no one else and nothing else to support the plaintiff’s
claim to the defendant’s land. The Judge concluded that
the plaintiff had failed to satisfy the Court whether verbally
or by documents that the land given to him in 1975 by the
late Litunga included Lot 6020/m, now occupied by the
defendant.
In the grounds of appeal and in the submissions and
arguments, many issues were raised. For example, the
plaintiff criticised the Judge for expecting customary land
to have survey diagrams and beacons. But in fact, the
learned trial Judge was commenting on the plaintiff’s own
evidence that a Mr Ilukui of the Mongu Rural Council
had surveyed his land. As Mr Nchito submitted, the plaintiff
cannot complain about a matter he himself had talked
about. Another complaint was that the Judge should not
have required the plaintiff to call corroborative evidence.

The learned trial Judge in fact made observations well
within his rights when he pointed out, in effect, that the
plaintiff’s claim rested solely on his own say so and that
neither the documents he had produced nor the witness
he called assisted his claim regarding the extent of his
own land. There is nothing in the judgment to suggest that
the learned trial Judge had categorised the evidence of
the plaintiff as one would expect in a criminal trial - as
falling within the classes which require corroboration
whether as a matter of law or as a matter of practice.
Another ground was that the current area Chief Libumbu,
gave hearsay evidence on the extent of the land. The
learned trial Judge in fact had before him the evidence of
the defendant that a meeting was called which the plaintiff
attended and where eye-witnesses to the first demarcation
were present to refute the plaintiff’s claim. All these
arguments were, in our considered view, red herrings. The
problem in fact reduced itself to sufficiency of proof, or
perhaps more accurately insufficiency of proof. In other
words, the plaintiff failed to prove his case on a balance.
In truth, we have no pretext which we can use for
reversing the learned trial Judge’s determination on the
facts and evidence before him.
That leaves the legal objection based on, the Orders in
Council. Once the defendant is adjudged as happened -
not to be occupying the plaintiff’s land, the plaintiff hardly
has locus standi to complain about land that is not his.
The Orders in Council while generally restricting
occupation by non-native inhabitants provided for
exceptions in special cases and with the consent and
approval of all the relevant traditional and State authorities.
The learned trial Judge was satisfied that the defendant
had the requisite permissions. The real dispute concerned
the grant and ownership of the land and whether the
defendant’s land was not part of the plaintiff’s land. To
further discuss the technical and legal objection based on
the Orders in Council in Vacuo is decidedly otiose. The
appeal fails.. .
1.8 Summary of Chapter One
Land law deals with rights and liabilities of land owners. It is

concerned with land, rights in or over land and the processes
whereby those rights and interests are created and transferred.
These interests are rights in land held by persons other than the
owner. Examples of these proprietary interests in land include
leases, mortgages, easements and profits. These proprietary
interests in land are capable of binding or affecting other people
not simply the parties to the contract. In other words, land law
rights are capable of attaching to the land itself so that any
person who comes into ownership or possession of the land
may be entitled to enjoy the rights it gives or be subject to the
obligations it imposes. One way of describing what land law is
all about is to say it is the study of the creation and operation of
proprietary rights which become part of the land and not personal
to the parties that created them.
There are a number of sources of land law in Zambia. These
include a host of statutes enacted by the Zambian legislature
that deal with specific areas of land law. The English common
law and doctrines of equity including the statutes which were in
force in England on the 17 th August 1911 (being the
commencement of the Northern Rhodesia Order in Council
1911), customary law, Judicial Precedent and textbooks are also
a source of land law.
This chapter has, inter alia, tried to outline the two basic
doctrines of English land law viz; the doctrines of tenure and
estate. The word tenure derived from the latin word tenere (to
hold) implies that land is held under certain conditions. Tenure
refers to the rules, regulations and conditions upon which land is
held. According to the doctrine of tenure, all land in England is
held of the Crown, either directly or indirectly on one or other
various forms of tenure. The doctrine of estates is concerned
with the length of time for which land is held. The doctrine
provides that a subject cannot own land (since it is owned by
the Crown), but can merely own an estate or interest in it
authorising him to hold it for some period of time. A subject may
hold the land under fee simple, for his life (or life or lives of
another or others), under fee tail or under leasehold.
In Zambia, following the imposition of colonial rule, the
freehold estates (together with leasehold estates), existed up
until 1975 when freehold tenure or estate was abolished and all
existing freehold estates were converted to renewable statutory

leasehold of 100 years commencing 1 July 1975.
One consequence of the concept of the estate was that the
law allowed various smaller and simultaneous estates to be
carved out of the fee simple estate. This led to the concept of
successive ownership of land (or Successive Interest in Land)
where one person could have an estate in the land for life and
another have rights which fall into possession after the life
interest of the first tenant has ended. Some of the estates or
interests resulting from the creation of settlement could be future
and/or contingent interests. Following the development of the
perpetuity rule at common law, there were limits to the future
interests which the law allowed. The period of time during which
future and/or contingent interests could take effect was limited
by the common law rule against perpetuities or the rule against
remoteness of vesting.
The Trust Restriction Act, of 1970, has severely restricted
the creation of settlements, trusts and future interests in any
real or personal property and any estate or interest therein. In
general the Act abolished the creation of settlements, trusts,
and any disposition where under property vests in possession at
a future date, subject to the limited exceptions under section 4.
Any intended settlement, trust or creation of a future and/or
contingent interest has to comply with or defer to the provisions
of the Act.
This chapter has also tried in a general way, to give an idea
of the nature and scope of land law. The chapter has introduced
a number of complex notions and concepts of the law of real
property. These concepts and terms are products of many
decades of development in England. There is need for every
student of land law to come or get to grips with these unfamiliar
terminologies and concepts.
39
Chapter Two
OWNERSHIP OF LAND AND ITS

LIMITATIONS
2.0 Introduction
It was pointed out in chapter one that there is no such thing as

absolute ownership of land under English law. All land in England
is held directly or indirectly from the Crown on one of several
tenures. All land in Zambia is vested absolutely in the President
and is held by him in perpetuity for and on behalf of the people
of Zambia.1 Individuals occupying land own estates, rights and
interests in land and not the land itself. They own rights to occupy
and use the land for a defined period of time. It is however
usual in ordinary parlance or every day speech to describe a
person who has substantial rights in land as the owner of land.
Riddal2 has observed that for practical purposes the holder of a
fee simple is today treated as being the equivalent of the owner
of the land but that the term ‘owner’ has not, except in common
parlance replaced the term holder of a fee simple. The word
‘owner’ or ‘ownership’ shall be used in this chapter without
losing sight of the legal position both in England and Zambia.
2.1 The Concept of Ownership
According to Dias, ownership consists of an innumerable number

of claims, liberties, powers and immunities with regard to the
thing owned.3 The right of ownership comprises benefits and
burdens. The former consists of claims, liberties, powers and
immunities, but the advantages these give is curtailed by duties,
liabilities and disabilities.4 Sir Pollock has defined ownership as
the entirety of powers of use and disposal allowed by law.5
According to Salmond, ownership in its most comprehensive
signification, denotes the relation between a person and any
right that is vested in him. That which a man owns in this sense
is in all cases a right.6 A person having ownership has the fullest
1
See section 3 (1) of the Lands Act of 1995, Chapter 184 of the Laws of Zambia.
2
3
Dias, R.W.M., Jurisprudence (5th ed.). London: Butterworths (1985), p. 292.
4
Ibid., at p. 297.
5
F. Pollock (sir), Jurisprudence and Legal Essays. Selected and introduced by Goodhart, S.T. London: Martin
Press (1961).
6
Fitzegerrad, S., On Jurisprudence (7th ed.). London: Sweet and Maxwell (1966), p. 277.
group of rights which a person can legally have in relation to

things of that kind, including at least some of the rights to occupy,
possess, use, abuse, use-up, let out, transfer in security, sell,
exchange, gift, bequeath and destroy.7
The rights of ownership may be vested in a single person or
in two or more persons either as joint tenants or owners, or as
tenants in common. Joint tenants possess the thing or property
undivided but have only one title to the property so that on the
death of one joint tenant the title accresces to the other or others
until it is vested in one who then becomes the sole owner. Tenants
in common possess the property in undivided shares but each
has distinct title to a determinate share which on his death passes
to his representatives.8 Ownership may also be divided according
to the time of its enjoyment whether in possession or expectancy
i.e., present or future.9
2.2 Ownership at Common Law
At common law the owner or holder of the largest estate in

land, the fee simple estate, had extensive powers of control,
disposition and use and enjoyment of land in which his estate
subsisted.10 In physical terms he may enjoy everything on,
beneath and above the land. The maxim is cujus est solum,
ejus, est usque et ad inferos,’ [he who owns the soil is presumed
to own everything ‘up to the sky and down to the centre of the
earth’]. This prima-facie includes all mines and minerals and
any chattel not the property of any known person which is found
under or attached to the land.11
2.3 Common Law Limitations or Restrictions on Ownership
2.3.1 Liability in Tort
In exercising rights over land a landowner must not interfere

with the legal rights of others. Liability in tort may arise:
(a) where a nuisance is caused, e.g., smell or noise;12
(b) under the rule in Rylands v. Fletcher,13 e.g., where water
escapes.
7
Walker, D.M., Oxford Companion to law. Oxford: Caredon Press (1980), p. 910.
8
Co-ownership of property is covered under chapter 4 of this book.
9
See section 1.5 of the preceding chapter – dealing with successive interests in land.
10
Hayton, D., Megarry’s Manual of the Law of Real Property (6th ed.). London: ELBS, p. 550.
11
Ibid., at p. 551.
12
See National Hotels Development Corporation [T/A Fair View Hotel] v. Motala [2002] ZR 39; the case is
excerpted under the section dealing with case law.
13
[1868] LR3 HL 330.
OWNERSHIP OF LAND AND ITS LIMITATIONS 41
2.3.2 Gold and Silver
At common law Gold and Silver belong to the Crown.
2.3.3 Treasure Trove
Treasure trove belongs to the crown at common law. A chattel

or object may amount to a treasure trove if:
(a) it consists of gold and silver;
(b) it is hidden in or on the land deliberately and not merely lost;
and
(c) the true owner is unknown.14
In Attorney General of Duchy of Lancaster v. Overton
Limited,15 a hoard of Roman Coins was held not to constitute
treasure trove because they contained only small amounts of
silver.
2.3.4 Wild Animals
At common law, wild animals cannot form the subject matter of

ownership.16 A land owner has, however, a qualified right to
catch, kill, and appropriate the animals on his land.17
2.3.5 Water Rights
At common law a land owner has no property in water which

flows or percolates through his land in a defined channel.18 In
respect to percolating water the owner of land is at liberty to
draw water without regard to the neighbouring owner.19 A
riparian owner (the owner of the land through which the water
flows) is entitled to the flow of water through his land unaltered
in quantity and quality, subject to the ordinary use by the upper
riparian owners and he is bound by a corresponding obligation
to the lower riparian owners.20
14
Attorney-General v. Trustees of British Museum [1903] 2 CH 598 at pp. 608 - 611.
15
[1982] 1 All ER 524.
16
17
Ibid.
18
Ibid.
19
Ibid.
20
See John Young and Co v. The Bankier Distillery Co. [ 1893] AC 691.
2.3.6 Air Space
At common law probably no action lay for trespass in respect

of passage through the air space above the land in such
circumstances as to involve no interference with the reasonable
use of it.21
In Lord Bernstein of Leigh v. Sky Views and General
Limited,22 it was held that the rights of an owner of land in the
air space above extended only to such height above the land as
was necessary for the ordinary use and enjoyment of the land
and the structures on it and above that height the owner had no
greater rights in the air space than any other member of the
public. In this case, since the defendant’s aircraft had flown
several hundred feet above ground and had not caused any
interference with any use to which the plaintiff put or could
wish to put his land, the defendant had not infringed such rights
as the plaintiff had in the air space and had not therefore
committed, a trespass. In the course of delivering his judgment
Griffith, J observed and commented thus:
I can find no support in authority for the view that

a landowner’s rights in the air space above his
property extend to an unlimited height. In
Wandsworth Board of Works v. United
Telephone Co.23 Bowen, LJ described the maxim,
usque ad coelum, as a fanciful phrase, to which I
would add that if applied literally it is a fanciful
notion leading to the absurdity of a trespass at
common law being committed by a satellite every
time it passes over a suburban garden. The
academic writers speak with one voice in rejecting
the uncritical and literal application of the maxim:
see, by way of example only, Winfield and Jolowicz
on Tort, Salmond on Tort, Shawcross and
Beaumont on Air Law, McNair on the Law of the
Air, and Halsbury’s Laws of England. I accept
their collective approach as correct. The problem
is to balance the rights of an owner to enjoy the
use of his land against the rights of the general
public to take advantage of all that science now
21
22
[1977] 2 All ER 902.
23
[1884] 13 QBD 904.
offers in the use of air space. This balance is in
my judgment best struck in our present society by
restricting the rights of an owner in the air space
above his land to such height as is necessary for
the ordinary use and enjoyment of his land and the
structures on it, and declaring that above that height
he has no greater rights in the air space than any
other member of the public. Applying this test to
the facts of this case, I find that the defendants’
aircraft did not infringe any rights in the plaintiff’s
air space, and thus no trespass was committed. It
was on any view of the evidence flying many
hundreds of feet above the ground and it is not
suggested that by its mere presence in the air space
it caused any interference with any use to which
the plaintiff put or might wish to put his land. The
plaintiff’s complaint is not that the aircraft interfered
with the use of his land, but that a photograph was
taken from it. There is, however, no law against
taking a photograph, and the mere taking of a
photograph cannot turn an act which is not a
trespass into the plaintiff’s air space into one that
is a trespass.24
2.4 Statutory Limitations on ‘Ownership’, Use and Enjoyment

of Land in Zambia
A number of statutes in Zambia have eroded away certain rights

of an ‘owner’ of land at common law. In relation to England, the
learned authors of Megarry’s Manual on the Law of Real
Property have observed that the massive statutory innovation has
overlaid the traditional freedom to act with a complex network of
restrictions.25 The learned authors have further observed that the
enactments were necessitated by the pressure of social and
economic forces working in the community.26 The statutory
restrictions on ownership and enjoyment of land in Zambia are
discussed below.
24
Ibid., at pp. 907-908.
25
26
Ibid.
2.4.1 Lands Act
The Lands Act,27 vests all land absolutely in the President who
holds it in perpetuity for and on behalf of the people of Zambia.28
All land in Zambia is administered and controlled by the President
for the use or common benefit direct or indirect of the people of
Zambia.29 The individuals occupying the land own estates, rights
and interests in land and not the land itself. That is, they own
rights to occupy and use land. It is, however, usual in everyday
speech to describe a person who has substantial rights in land
as the owner of land.
2.4.2 Minerals: Lands Act and Mines and Minerals Act
Section 2 of Lands Act defines ‘land’ to mean ‘any interest in

land whether the land is virgin, bare or has improvements but
does not include any mining rights as defined in the Mines and
Minerals Act’. Section 3 of the Mines and Minerals Act,30
provides that the rights to all minerals in Zambia are vested in
the President.
Subsections 1 and 2 of section 3 of the Mines and Minerals
Act provide that:
(1) All rights of ownership in, searching for, and

mining and disposing of, minerals are hereby
vested in the President on behalf of the
Republic.
(2) The provisions of this section have effect
notwithstanding any right, title or interest which
any person may possess in or over the soil in,
on or under which minerals are found.
Section 2 of the Mines and Minerals Act defines a ‘mineral’

to mean:
any material substance, whether in solid, liquid, or

gaseous form, that occurs naturally in or beneath
the surface of the earth, but does not include water,
petroleum or any substance or thing prescribed by
the Minister by regulation;
27
28
Ibid., section 3 (1).
29
It is clear from the definition of ‘land’ under section 2 of the
Lands Act as well as from subsections 1 and 2 of section 3 of
the Mines and Minerals Act that ‘ownership’ of land does not
mean or include ownership of minerals occurring or found on,
under or beneath the land.
2.4.3 Water Act
The preamble to the Water Act31 provides that it is an ‘Act to

consolidate and amend the law in respect of the ownership,
control and use of water and to provide the matters incidental
thereto or connected therewith.’
Section 5 of the Water Act vests the ownership of all water
in Zambia in the President. The section provides that:
The ownership of all water is vested in the

President. The use, diversion and apportionment
of all water shall be made in terms of this Act.
In terms of application, the Water Act applies throughout Zambia

apart from:
(a) the Western Province;
(b) the Zambezi River;
(c) the Luapula River;
(d) that portion of the Luangwa River which constitutes
the boundary between Zambia and Mozambique.32
Section 2 defines ‘private water’ (which a landowner is at liberty
to use as he likes) to mean:
(a) the water in a swamp, the boundaries of

which are wholly within the boundaries of the
land owned by any one landowner and which
do not cross or abut against the boundaries
of the said land and to or from which no
stream extending beyond the boundaries of
the said land flows, either continuously or
intermittently;
(b) the water in a spring which is situated wholly
within the boundaries of the land owned by
30
31
32
Ibid., section 3.
any one owner and which does not naturally

discharge water into a water-course beyond
the boundaries of the aforesaid land or
abutting on its boundaries;
(c) the water brought to the surface of such
aforesaid land by artificial means;
(d) flood waters which are impounded on the
aforesaid land by artificial means and would
otherwise have run to waste;
‘Public water’ is defined under section 2 to mean:
all water flowing or found in or above the bed of a

public stream, whether visible or not, including lakes,
swamps or marshes forming the source of such a
stream or found along its course;
The water Act provides for three types of water uses, viz.:
‘primary use’, ‘secondary use’ and ‘tertiary use’. Section 2 of
the Act defines ‘primary use’ to mean ‘the use of water for
domestic purposes and the support of animal life (including the
dipping of cattle).’
‘Secondary use’ is defined under the same section to mean
‘the use of water for the irrigation of land and pisciculture.’
Section 2 further defines ‘tertiary use’ to mean ‘the use of
water for mechanical and industrial purposes or for the
generation of power;’
In terms of section 8 of the Act, any person shall have the
primary use of public water which is found in its natural channel
or bed at such places to which access may be lawfully had i.e.,
no water rights are needed for the ‘primary use’ of public water.
Any intended use of public water for secondary or tertiary use
requires water rights from the Water Board established under
section 23 of the Act.33
2.4.4 The Town and Country Planning Act
At common law, any land owner was free to use and develop
his land in any way he wished provided he did not commit a
nuisance or trespass against his neighbour’s property. The need
to provide for a rational and integrated pattern in the process of
land use and development necessitated the enactment of the
33
See sections 11 and 12 of the Act.
Town and Country Planning legislation in 1909 in England.34
The Town and Country Planning legislation of England was, like
a number of other statutes, ‘imported’ into the Northern Rhodesia
Protectorate by the colonial administration. The Town and
Country Planning Act35 places controls on the development and
subdivision of land by requiring planning permission before
undertaking any development or subdivision on land. A landowner
in Zambia is therefore no longer at liberty, as was the case at
common law, to use or develop his land as he wishes. Megarry
and Wade have observed, in relation to social control of land in
England, that it is against the interests of the public at large for
land owners to have unfettered power to develop their land as
they wish.36
2.4.5 The Public Health Act (Building Regulations)
The building regulations promulgated under the Public Health

Act37 are discussed in detail under chapter 18 of this book. In a
nutshell, the building regulations require that a building permit be
obtained before erecting any structure or building. The building
regulations cover such matters as the construction, materials,
height, sanitation, ventilation and size of rooms. A land owner,
therefore, has to comply with the building regulations by obtaining
a building permit before erecting any building or structure on his
land.
2.4.6 The Aviation Act
The preamble to the Aviation Act38 provides that it is an ‘Act to

enable effect to be given to the International Convention on
Civil Aviation and to make provision for the control, regulation
and orderly development of aviation within Zambia.’
Subsection 1 of section 12 of the Civil Aviation Act provides
that:
No action shall lie in respect of trespass or in

respect of nuisance, by reason only of the flight of
an aircraft over any property at a height above the
ground, which, having regard to wind, weather and
34
35
36
Megarry and Wade, Law of Real Property (6th ed.). London: Sweet and Maxwell (2000), p. 1336.
37
38
all the circumstances of the case, is reasonable, or

the ordinary incidents of such flight, so long as the
provisions of this Act and of the Convention are
duly complied with.
2.4.7 Zambia Widlife Act - Ownership of Wild Animals
Section 3 of the Zambia Wildlife Act,39 vests absolute ownership

of every wild animal40 within Zambia in the President on behalf
of the Republic. Subsections 1 to 5 of section 3 provide that:
(1) Subject to the other provisions of this Act, the

absolute ownership of every wild animal within
Zambia, is hereby vested in the President on
behalf of the Republic.
(i) where any wild animal, which is not a
game animal or a protected animal, is
captured or killed or otherwise reduced
into possession by any person in
accordance with this Act, the absolute
ownership of that animal or of the
carcass of that animal, as the case may
be, is hereby transferred to and vested in
such person;
(ii) where any game animal or protected
animal is lawfully captured or killed or
otherwise reduced into possession by any
person in terms of a licence issued under
paragraphs (a), (b), (c), and (h) of section
thirty-three or under any authority
granted under this Act, the absolute
ownership of the game animal or
protected animal or of the carcass or any
trophy of those animals, is, subject to the
other provisions of this Act and to the
terms and conditions of the licence or
authority, as the case may be hereby
transferred to, and shall vest in, the
licensee under the licence or the person
so authorised, as the case may be;
39
Act No. 12 of 1998.
40
A wild animal is defined under section 2 to mean: ‘any Animal ferae naturae, and includes any game or
protected animal, but does not include any domestic animal.’
(iii) where any wild animal is found resident
on any land, the right to harvest such
animal shall, subject to such regulations
as the Minister may, on the advice of the
Authority, prescribe, vest absolutely in the
owner of such land.
(2) Notwithstanding subsection (1), the absolute
ownership of any wild animal, which has been
captured or reduced into possession by any
person prior to the commencement of this Act,
subject to any other written law in force on
the date of the capture of the animal or of its
reduction into possession, is hereby declared
to be vested in the person, who, on the
commencement of this Act whether directly
or through an agent, is in actual lawful
possession of the animal.
(3) Except as provided by subsection (1), nothing
in this section shall be deemed to transfer to
any person the ownership of any game animal
or protected animal which is found dying or
dead, or of any found carcass, part of a
carcass, trophy or meat or any game animal
or protected animal.
(4) Notwithstanding any other provisions of this
section, if any person hunts or reduces into
possession any game animal or protected
animal in contravention of this Act, the absolute
ownership of that game animal or protected
animal or of the carcass or any trophy of the
animal shall not be transferred, or be deemed
to have been transferred, to that person or to
any other person by reason of its having been
so hunted or reduced into possession.
(5) The Authority may, in writing, transfer to any
person the absolute ownership of any game
animal or protected animal which has been
hunted or reduced into possession by any other
person in contravention of this Act, and such
other person shall forthwith deliver up the game
animal or protected animal to the person to
whom the ownership has been transferred in
terms of this subsection.
2.4.8 Protection of Tenants – The Rent Act and Landlord and

Tenant (Business Premises) Act
The purpose of the Rent Act41 is to protect tenants against their

landlords. The Act protects the tenants against the landlord in
general in terms of protection against eviction and/or possession
and control of rent.
The Landlord and Tenant (Business Premises) Act,42 as per
its preamble, is an ‘Act to provide security of tenure for tenants
occupying property for business, professional and certain other
purposes and to enable such tenants to obtain new tenancies in
certain cases.’ The two statutes have interfered with the
traditional freedom of contract by restricting the ability of
landlords or owners of land to do as they may want in relation to
the tenancy agreements with their tenants.
2.4.9 The Land Acquisition Act - Compulsory Acquisition of

Land
Compulsory acquisition may be defined as the taking of land or

an interest in land from the owner without his agreement. Section
3 of the Lands Acquisition Act 43 empowers the President,
whenever he is of the opinion that it is desirable or expedient in
the interests of the Republic, to compulsorily acquire any property
of any description. The compulsory acquisition of property has
to be in public interest. Compulsory acquisition of property in
Zambia is dealt with in detail in chapter 14 of this book.
2.4.10 Forest Act - Ownership of Trees and Forest Produce

Section 3 of Forest Act44 provides for the ownership of trees
and forest produce. The section provides:
For avoidance of doubt, it is hereby declared that the

ownership of all trees standing on, and all forest
produce derived from, the State Lands, Customary
areas, National Forests and Local Forests is vested in
the President on behalf of the Republic, until lawfully
transferred or assigned under this Act or any other
written law.
41
Chapter 206 of the Laws of Zambia. The Act is covered under Chapter 15 of this book.
42
Chapter 193 of the Laws of Zambia. The Act is covered under Chapter 16 of this book.
43
44
The case below which dealt with the tort of nuisance of noise
illustrates that while a land owner is free to use his land as he
feels, he has to take into account the interest of his neighbours
so as not to injure them in his enjoyment of his land. The case
also illustrates the application of the Latin maxim, ‘Sic utere
tuo, ut alienum non laedas’, i.e., use your own property as
not to injure your neighbour.
2.5 Case Law
National Hotels Development Corporation T/A Fairview Hotel v.

Ebrahim Motala (2002) ZR 39
[The facts appear from the Judgment of the Supreme Court delivered
by NGULUBE, CJ as he then was]
This case concerns noise nuisance and the issues are whether it
was wrong to find the appellant (the defendant) liable at all and
secondly, if the answer be in the negative, whether it would be
wrong to ban forever the playing of music on the terrace of the
defendant’s hotel. The parties are neighbours separated only
by a road and the respondent (hereafter called the plaintiff)
complained that the playing of loud music on the terrace more
or less overlooking his house late into the night disturbed his
quiet and convenient enjoyment of his house. The defendant’s
position was that the playing of music on the terrace attracts
more patrons and its absence would lead to serious financial
loss. The plaintiff testified to being thoroughly inconvenienced
such that it was sometimes impossible even to hear the dogs
barking or visitors’ cars’ arriving or even to hold any meaningful
conversation. The parties called some of the neighbours, on the
other side to say they too were sufferers like the plaintiff. The
parties even called experts to record the noise levels in decibels
with the defendant submitting that the plaintiff was oversensitive
and should have no cause of action. An expert on the plaintiff’s
side talked of having recorded noise levels around 81 to 88
decibels while the expert on the defendant’s side opined that to
be painful to the ear and therefore intolerable, the noise levels
should be around 120 decibels or more.
Spirited arguments and submissions were made before us to
persuade us that noise levels at less than 120 decibels should
not be actionable. We are not too sure whether noise nuisance
can be reduced to decibels so that only a specific level or quantity

of noise measured in decibels should be actionable. This type of
civil wrong has long been recognised to raise questions of fact,
such as whether noise disturbance which deprives a neighbour
of rest or sleep can or cannot inconvenience any other person
of ordinary firmness and sensibility. The whole position is put
very well by the learned authors of Clark and Lindsell on torts,
16th edition, paragraph 24-05 when they write:
In nuisance of the third kind, the personal

inconvenience and interference with one’s
enjoyment, one’s quiet, one’s personal freedom,
anything that discomposes or injuriously affects the
senses or the nerves, there is no absolute standard
to be applied. It is always a question of degree
whether the interference with comfort or
convenience is sufficiently serious to constitute a
nuisance. The acts complained as constituting the
nuisance, such as noise, smells or vibration, will
usually be lawful acts which only become wrongful
from the circumstances under which they are
performed, such as the time, place, extent or the
manner of performance. In organised society
everyone must put up with a certain amount of
discomfort and annoyance from the legitimate
activities of his neighbours, and in attempting to fix
the standard of tolerance the vague maxim sic
utere tuo, ut alienum non laedas has been
constantly invoked. But the maxim is of no use in
deciding what is the permissible limit in
inconvenience and annoyance between neighbours,
and the courts in deciding whether an interference
can amount to an actionable nuisance have to strike
a balance between the right of the defendant to
use his property for his own lawful enjoyment and
the right of the plaintiff to the undisturbed enjoyment
of his property. No precise or universal formula is
possible, but a useful test is what is reasonable
according to ordinary usages of mankind living in
a particular society.
Whether such an act does constitute a nuisance
must be determined not merely by an abstract
consideration of the act itself, but by reference to
all the circumstances of the particular case,
including, for example, the time of the commission
of the act complained of; the manner of committing
it, that is, whether it is done wantonly or in the
reasonable exercise of rights; and the effect of its
commission, that is, whether those effects are
transitory or permanent, occasional or continuous;
so that the question of nuisance or no nuisance is
one of fact.
Respectfully, we go along with the foregoing propositions which

are supported by case authorities, as noted by the authors. In
the case at hand, the Court below found as a fact that the plaintiff
suffered discomfort, disturbance and inconvenience. Admittedly,
the defendant too was not doing anything illegal as such; they
too were exercising their rights to entertain their patrons with
music and to make money. Apparently, from the spirited
submissions, music on the terraces encourages patrons to come
in their numbers and to spend their money. Apparently and
contrary to Mr Wood’s submissions, it is not the same thing if
the music were to be played indoors; in some other part of the
hotel, as was suggested. However, there can be no question of
killing the tort of noise nuisance for the sake of accommodating
business interest, as Mr Wood feared.
The problem here cannot be one of attaching or detaching
liability. Quite clearly, there is no proper ground for disturbing
the lower court’s finding of liability and the ground urged in that
behalf is successful.
However, we find that there was much merit in the ground
complaining about the relief of perpetual injunction and the
apparent permanent blanket ban on the playing of music on the
terraces. The problem is one of striking a balance between the
right of the defendant to use his property for his own lawful
enjoyment and the right of the plaintiff to the undisturbed
enjoyment of his property. We have lifted this phrase out of the
earlier quotation which in turn was taken from SEDLEIGH-
DENFIELD v. O’CALLAGHAN,45 by Lord Wright at p. 903.
In striving to strike a balance, we are pleased to note the sensible
attitude taken by the plaintiff through his Counsel that he is not
opposed to music at reasonable levels and up to a reasonable
hour. The blanket ban was too harsh and it ignored the rights of
the defendant which equally need to be recognised and protected.
45
(1940) AC 880.
In this regard, the appeal is allowed to the extent that the

complete ban on the playing of music on the terraces is set
aside. Instead, there will be conditions imposed and the order
of injunction rephrased so as to permit the playing of music on
the terraces up to 21:30 hours during weekdays and 22:30 hours
during weekends. The times represent a compromise between
those suggesting the plaintiff to damages to be assessed on an
aggravated footing by the Deputy Registrar on application by
the plaintiff. We consider that this will address the concern that
orders have in the past been continually breached.
In sum, the appeal succeeds to the extent indicated. In order
to foster goodwill and a sensible approach to the problem by
these neighbors, we make no order as to costs.
2.6 Summary of Chapter Two
This chapter has examined and considered the concept of

ownership of land and its limitations. Under the doctrine of
estates, the allodial ownership of all land in England is in the
Crown. A subject cannot own land per se but an estate or
interest or right in the land of a defined duration. At common
law the owner of the largest estate, the fee simple estate, is
treated as being the equivalent of the owner of land. The owner
or holder of a fee simple estate had, at common law, extensive
powers of control, use, disposition and enjoyment of the land in
which his estate subsisted. In physical terms he owned and
enjoyed everything on, beneath and above the land. But even at
common law there were a number of limitations or restrictions
on ownership and enjoyment of land. It is only prudent that any
society must impose checks on such an extensive right of
ownership in accordance with the principle of the maxim sic
utere tuo, ut alienum non laedas. i.e use your own property
as not to injure your neighbour.’ In Zambia a number of statutes
have eroded away certain rights of the ‘owner’ of land at
common law. These restrictions have been put in place in order
to protect the wider interests of society and the public at large.
The National Hotels Development Corporation case,
excerpted above, clearly shows the need to impose checks on
the rights associated with ‘ownership’ and enjoyment of land so
that in our ownership and enjoyment of land we do not injure
others. We need to live but also at the same time let others live.
55
Chapter Three
FIXTURES
3.0 Introduction
From the legal point of view, land means not only the ground but
also the subsoil and all structures and objects such as buildings,
trees and minerals standing or lying beneath it. This concept of
land is often expressed in the Latin maxim ‘quic quid plantatur
solo, solo cedit,’ (whatever is annexed to the land becomes
part of the land). A fixture is therefore a chattel or object that
has become so affixed or attached to land so as to become part
of the land. If a chattel has not become a fixture, it is known as
a fitting.
3.1 Fixture or Fitting?
Disputes may arise as to whether a chattel or object has become

a fixture or not. Once a chattel has become a fixture or part of
the land it cannot generally be removed. Burn has observed
that the question whether a chattel remains a chattel or has
become part of the land can arise in many contexts,1 including,
whether it passes to a purchaser on the sale of land,2 whether it
is included as part of the security on the mortgage of land,3
whether it is owned by the estate of a tenant for life or passes to
the remainderman,4 whether it passes on death as realty or
personalty.5
In order to resolve such types of disputes there are tests that
have been formulated to determine whether a chattel has become
a fixture or not.
1
Burn, E.H., Maudsley and Burn’s Land Law: cases and materials (5th ed.). London: Butterworths (1986), p.
89.
2
Philips v. Lamdin [1949] 2 KB 33, [1949] 1 ALL 770 (Purchaser entitled to reinstatement of Adam door
removed by vendor).
3
Lyon and Co. v. London City and Midland Bank [1903] 2 KB 135 (Tip up seats screwed to bolts fastened to
floor and hired to mortgagors were held to be chattels). In Vaudeville Electric Cinema Ltd v. Muriset [1923]
2 CH 74, similar seats owned by mortgagor held to be land, Reynolds v. Ashyby and Sons [1904]
AC 466; Machine bolted to the floor held to be land.
4
Re Lord Chesterfield’s settled estates [1911] 1 Ch 237; Leigh v. Taylor [1902] AC 157 (tapestries stretched
over canvas and tacked thereto held to remain chattels).
5
Re, Whaley [1908] 1 Ch 615 (pictures and tapestries in dining room designed as a ‘complete specimen of
Elizabeth dwelling house’ passed under devise of house and not under bequest of chattels.
3.2 Tests for Determining Whether a Chattel Has Become

a Fixture
In determining whether a chattel has become a fixture, a

combination of two tests is applied; viz.:
(i) the degree of annexation; and
(ii) the purpose of annexation.
3.2.1 The Degree of Annexation
Early law attached great importance to this test. In general, for

an article to be considered a fixture, some substantial connection
with the land or a building on it must be shown.6 Unless actually
fastened or connected with the land or building in a substantial
way, a chattel cannot normally become a fixture under the degree
of annexation test. A test often applied is whether the item can
be removed without causing damage or injury to land. Where
the chattel merely rests of its own weight on the land, it is not,
prima facie, a fixture.7 However, this may be rebutted when it
is clear that the object was intended as a permanent improvement
of the land. The more securely an object is affixed and the
more damage that would be caused by its removal, the more
likely it is that the object was intended to form a permanent part
of the land.8
3.2.2 The Purpose of Annexation
Where the purpose of attaching a chattel is to permanently

improve the land, rather than merely to display the chattel, then
a fixture is presumed. In order to determine the purpose of
annexation, the question to be asked is, ‘was the intention to
effect a permanent improvement of the land or building as such;
or was it merely to effect a temporary improvement or to enjoy
a chattel as a chattel?9’ If the intention was to effect a permanent
improvement to the land, then the chattel is a fixture. On the
other hand, if the intention was merely to effect a temporary
improvement then the chattel is a fitting. Even if the degree of
attachment is substantial, an object or chattel may not become a
fixture if the method of fixing was necessary for its proper
6
Hayton, D., Megarry’s Manual of the Law of Real Property (6th ed.). London: ELBS (1982), p. 19.
7
Hulme v. Brigham [1943] 1 All ER 204, [1943] 1 KB 152.
8
Spyer v. Phillipson [1931] 2 Ch 183 at pp 209, 210.
9
Hellawell v. Eastwood [1851] 6 Ex Ch. 295 at 312.
FIXTURES 57
enjoyment. 10 In Vaudeville Electric Cinema Co. Ltd v.
Muriset,11 cinema seats secured to the ground were held to be
fixtures. Objects such as statues, seats, and ornamental vases
have been held to be fixtures even though they were only held in
position by their own weight, the reason being that they formed
part of the architectural design of a house or grounds.12
3.3 Common Law Exceptions
As a general rule, if a chattel constitutes a fixture it cannot be

removed from the land since it is part of the land. There are,
however, certain limited exceptions to this rule discussed below.
A. Landlord and Tenant
A tenant may remove certain ‘tenant’s fixtures’ during the lease

or within a reasonable time thereafter. These include:
1. Trade fixtures – Fixtures attached to land by a tenant
for the purpose of carrying on a trade or business are
at Common Law removable by the tenant at any time
during the course of the lease or shortly thereafter. In
Smith v. City Petroleum Company Limited,13 it was
held that petrol pumps affixed to tanks embedded in
the ground were tenant’s fixtures, and were removable
within a reasonable time after the determination of
the term and if not so removed, the property in the
pump passed on to the landlord, and a subsequent
tenant takes no interest in them. In this case since the
tenant did not remove the petrol pumps within a
reasonable time after the determination of the lease,
they became the property of the landlord.
2. Ornamental and domestic fixtures – A tenant may,
during the term of the lease, remove chattels he has
fixed to the house for the purpose of ornamental or
domestic use. These are chattels that can be removed
without causing substantial damage to the building.14
A mortgagor cannot remove fixtures during the course of the
mortgage.15 As for fixtures attached by the mortgagor after
10
Leigh v. Taylor [1902] AC 157 -Tapestries affixed by nails and tacks were not fixtures.
11
[1923] 2 CH 74.
12
Re Whaley [1908] 1 Ch 615.
13
[1940] 1 All ER 260.
14
15
Monti v. Barnes [1901] I QB 205.
the date of the mortgage, the mortgagor is not entitled to remove

them.16
All fixtures attached to the land at the time of the contract of
sale must be left for the purchaser unless otherwise agreed.17
3.4 Case Law
(a) Fixtures – Tests for determining whether Chattel has

become a fixture
Leigh and Others v. Taylor and Others [1902] AC 157
Valuable tapestries were affixed by a tenant for life to the walls

of a house for the purpose of ornament and better enjoyment of
them as chattels. They could be removed without doing any
structural injury. On the death of a tenant for life, a dispute
arose between the estate of the tenant for life and those
representing the remainderman on whether the tapestries had
become part of the house or were chattels to the estate of the
tenant for life.
It was held that the tapestries put up for ornamental purpose
and attached in the said manner did not pass with the freehold
to the remainderman, but formed part of the personal estate of
the tenant for life, and were removable by her executor. In
delivering the Judgement, the Lord Chancelor [Earl Of Halsbury]
discussed the two tests for determining whether the chattel or
object has become a fixture or not. His Lordship emphasised
the point that the question is really one of fact taking into account
the changed mode of life. The case is excerpted below.
Earl of Halsbury L.C. My Lords, in this case we have had
a long and learned argument by the two learned counsel who
have appeared for the appellants. I am not certain that I quite
understand the conflict between the two’ propositions, or that I
quite understand on what principle one is supposed to decide
these cases apart from the facts of each particular case.
One principle, I think, has been established from the earliest
period of the law down to the present time, namely, that if
something has been made part of the house it must necessarily
go to the heir, because the house goes to the heir and it is part of
the house. That seems logical enough. Another principle appears
to be equally clear, namely, that where it is something which,
16
Reynolds v. Ashby and Son [1904] AC 466.
17
Philips v. Lamdin [1949] 1 All ER 770.
FIXTURES 59
although it may be attached in some form or another (I will say
a word in a moment about the degree of attachment) to the
walls of the house, yet, having regard to the nature of the thing
itself, and the purpose of its being placed there, is not intended
to form part of the realty, but is only a mode of enjoyment of the
thing while the person is temporarily there, and is there for the
purpose of his or her enjoyment, then it is removable and goes
to the executor.
My Lords, we have heard something about a suggested
alteration of the law; but those two principles appear to have
been established from the earliest times, and they are principles
still in force. But the moment one comes to deal with the facts
of each particular case, I quite agree that something has changed
very much: I suspect it is not the law or any principle of law, but
it is a change in the mode of life, the degree in which certain
things have seemed susceptible of being put up as mere ornament
were as at an earlier period the ruder construction made it
impossible sometimes to sever the thing which was put up from
the realty. If that is true, it is manifest that you can lay down no
rule which will in itself solve the question; you must apply yourself
to the facts of each particular case; and I am content here to
apply myself to the facts of this case. Here are tapestries which,
it is admitted are worth a great deal of money. I put the case:
suppose this had been a tenant from year to year, and she put up
these things, is it conceivable that a person would for the purpose
of a tenancy from year to year put up these things exactly in
this way if thereby they made a present of 7000l. to the landlord?
That I observe, startled Mr Levett; he would not acquiesce in
that; but logic I am unable to sever the two sets of facts which
I suggest. It is all very well to say that there is a difference
between the cases of an heir and executor on the one hand and
a landlord and tenant on the other; but if you grant the proposition
that it must depend upon the purpose of the annexation, and you
must attend to the degree of annexation. I am wholly unable to
frame a hypothesis of a state of things in which these two
principles will not decide the question, whether you are dealing
with a landlord and tenant, or whether you are dealing with a
tenant for life and a remainder man, or with people standing in
any other relation to theses things. In this case Madame de
Falbe stood as a tenant for life to the remainder man.
My Lords, we come then, in my view, to the determination
of the question upon the principles I have pointed out, applying
them to the particular facts of this case. What are they?
Here we have of ornamentation of very great value.

Undoubtedly their only function in life, if it may be so called, is
the decoration of a room. Suppose the person had intended to
remove them the next month or the next year or what not, I do
not know, notwithstanding the ingenious effort that has been
made by Mr Levett, in what other way they could have been
fastened than they were. We have seen the hard match-board
to which they were fastened in the first instance; then canvas
was stretched on it, and the decoration of the wall as it originally
stood was perfectly preserved except to the extent to which the
nails were driven into the wall, because otherwise the tapestry
could not have been stretched out firm, as it was. I do not know
any other mode by which the large one, for example, fourteen
feet long, could have been placed there as it was. One has
immediately before one’s mind’s eye cases of pictures of another
sort, after all, although this tapestry is very valuable, as I
understand, and very beautiful, it is only a picture made in a
particular form - it is a picture whether woven or worked or
what not, made for the purpose of ornamentation. When one
looks at it sees what it is, I should have thought, if ever there
was an extreme case in which it would have been impossible to
suppose that the person intended to dedicate it to the house, it
was the case of these tapestries, which can be, and in fact have
been, removed without anything but the most trifling disturbance
of the material of the wall.
Under these circumstances I can entertain no doubt, now
that we have had the whole case before us, that there is nothing
which points to any intention to dedicate these tapestries to the
house. There is nothing in the nature of the attachment which is
necessarily permanent. My Lords, a number of words have been
used, such as ‘only very slightly attached’ and ‘not permanently
attached.’ They really often assume the very question in debate.
Looking at the piece of boarding on which the canvas was
stretched and on which this tapestry went, I can hardly imagine
how a piece of tapestry of that extent, fourteen feet long, stretched
against a wall, could be more slightly attached than this was.
Under those circumstances it appears to me that the thing is so
easily susceptible of being removed, and has in fact been
removed, without any damage or material injury to the structure
of the wall, that to my mind, so far as it is dependent upon a
question of fact, it never was intended to form part of the
structures of this house; and that, after all, is what the meaning
FIXTURES 61
of ‘the benefit of the inheritance’ comes to, though expressed in
different words. It never was intended to remain a part of the
house; the contrary is evident from the very nature of the
attachment, the extent and degree of which was as slight as the
nature of the thing attached would admit of. Therefore, I come
to the conclusion that this thing, put up for ornamentation and
for the enjoyment of the person while occupying the house, is
not under such circumstances as these part of the house. That
is the problem one has to solve in each of these cases. If it is not
part of the house, it falls under the rule now laid down for some
centuries that it is a sort of ornamental fixture, and can be
removed by whoever has the right to the chattel- whose it was
when it was originally put up.
My Lords, for these reasons I am of the opinion that this
appeal must be dismissed with costs.
I only wish to say that I do not want to add to the confusion
which is suggested to have caused by differences of opinion
among the learned judges below. My own view is that, going
back for some centuries, the real differences of opinion, which
apparently on the surface have been entertained by different
judges, have not been at bottom differences in the law at all, but
the facts have been regarded in different aspects according to
the fashion of the times, the mode of ornamentation, and the
mode in which houses were built and the degree of attachment
which from time to time became necessary or not according to
the nature of the structure which was being dealt with. The
principle appears to me to be the same today as it was in the
early times, and the broad principle is that, unless it has become
part of the house in any intelligible sense, it is not a thing which
passes to the air. I’m of opinion that this tapestry has not become
part of the house, and was never intended in any way to become
part of the house and I am, therefore of opinion that this appeal
ought to be dismissed with costs, and I move your Lordships
accordingly.
(b) Fixtures - ‘quicquid Plantatur solo, solo cedit’ – ‘Whatever

is attached or annexed to land has become part of the
land’
Namung’andu v. Lusaka City Council (1978) ZR 358
The plaintiff erected a building on land belonging to the defendant.

He had no permission to do so. The defendants demolished the
building as result of which electrical fittings, roofing sheets,

window frames, electric bulbs, doors and door frames were
destroyed with the rest of the building. The plaintiff claimed
damages for the value of the building but abandoned this claim
during the trial and proceeded solely with a claim for the value
of the items mentioned.
NGULUBE, High Court Commissioner [as he then
was]…The plaintiff having abandoned any claims asserting
proprietary rights or any rights under any permission or licence
appears to base his remaining claim for failure by the defendant
to account for his goods on the basis of neglect. I can see no
other basis other than an implied assertion that the defendants
were under a common law duty which they owed to the plaintiff
to salvage and return to him the various goods already referred
to. The success or otherwise of this claim depends on what the
legal position is in relation to those goods.
The plaintiff does not now complain against the actual
demolition. Indeed, he cannot complain about the demolition.
The evidence from the defendants themselves was that certain
items are normally removed carefully and given to the squatter.
I have already said that on the facts, I believe the defendants’
version which was that the plaintiff’s wife and workers had in
fact been called in at the demolition. It was their duty to take the
items in respect of which the plaintiff complains.
If, for the sake of argument, the position was that the
plaintiff’s wife and workers had not in fact been called in, I
would nevertheless not hold that the practice which the
defendants had evolved of rescuing certain parts of the houses
being demolished created any legal obligations on their part to
do so.
Common sense demands that when notice is given of an
impending demolition, it is the owner of the structure who should
take it upon himself to salvage those building materials which
can be salvaged. As long as the defendants had the right to
demolish the house, they were entitled to demolish every
component of such house. I can find no legal authority for the
proposition that they should and are obliged to salvage any part
of the structure. The plaintiff can therefore only succeed if the
goods in question are moveable chattels in the house which are
not in fact part of such house, i.e., fixtures.
Learned counsel for the defendant has referred me to a
number of authorities. These include Billing v. Pill18 where
18
[1953] 2 All ER 1061 at p. 1063.
FIXTURES 63
Lord Goddard posed the question, ‘what is a fixture?’ He then
said:
First, the commonest fixture is a house. A house is

built into the land, so the house, in law is regarded
as part of the land; the house and the land are one
thing. Anything which is an integral part of the
house, such as for instance, lead pipes, will also be
a fixture and will be attached to or form part of the
land.
Lord Goddard in that case goes on to consider many more aspects

of the question. The gravamen of his argumentation and this is
the correct legal position, that whatever has been built into a
house with a view that it should be permanently annexed thereto
and be an integral part of the unexhausted improvements,
becomes part of the house and in turn part of the land. The
electric appliances, doors, door frames, roofing sheets, bulbs and
window frames which the plaintiff contended were already a
part of the completed house, were fixtures. Even, therefore,
without debating whether the roof was on or not, on the plaintiff’s
own evidence, I would find that these were all fixtures. As there
is no obligation to dismantle a house carefully when an owner of
land is carrying out a lawful demolition, there is no obligation to
rescue any fixtures. The maxim quic quid plantatur solo, solo
cedit remains true to this day. The plaintiff must fail even on this
claim restricted to the goods.
(c) Tests for determining whether a chattel or object has

become a fixture
Berkley v. Poulett (1976) 241 Estates Gazzette 911, 242 Estates

Gazette 39 (CA, Stamp, Scarman and Goff) Ljj)
The eighth Earl Poulett agreed to sell the Hinton St. George
Estate to Effold Ltd, and Effold Ltd agreed, as Earl Poulett knew,
to sell Lot 1 which included the mansion house to the plaintiff.
The properties were duly conveyed. Prior to the conveyance to
Effold Ltd, the Earl removed a number of treasures from the
house and sold them. Effold Ltd was unconcerned; but the
plaintiff claimed that, by virtue of the sub-contract between
himself and Effold Ltd, he became the owner of the treasures.
The treasures in question were -

(i) a number of pictures which, while still in their
frames, had been affixed by screws into the
recesses in the paneling of the dining room
(ii) a white marble statue of a Greek athlete, weighing
half a ton and a sundial; each resting by its own
weight on a plinth or pedestal outside the house.
The plaintiff claimed that these treasures were fixtures. The
further question whether, assuming they were fixtures, the
plaintiff was entitled to them by virtue of this sub-contract, is
omitted here.
Held: The treasures were not fixtures.

SCARMAN, LJ: As so often, the difficulty is not the formulation
but the application of the law. I think there is no need to enter
into research into the case law prior to Leigh v. Taylor.19 The
answer today to the question whether objects which were
originally chattels have become fixtures, that is to say part of
the freehold, depends upon the application of two tests: (1) the
method and degree of annexation: (2) the object and purpose of
the annexation. The early law attached great importance to the
first test. It proved harsh and unjust both to limited owners who
had affixed valuable chattels of their own to settled land and to
tenants for years. The second test was evolved to take care
primarily of the limited owner, for example a tenant for life. In
Leigh v. Taylor the House of Lords invoked it to protect the
interest of the tenant for life who had affixed large and valuable
tapestries to the walls of the house for the purpose of adornment
and enjoyment of them as tapestries, as I read that decision, it
was held that she had not made them fixtures. ‘They remained
chattels from first to last,’ said Lord Lindley at p.164 of the
report. In the law of landlord and tenant the law’s protection
went further: even if the chattel affixed by the tenant must be
held to have become a fixture, that is to say part of the realty, a
rule was evolved that it was to be treated as the property of the
tenant and could be removed by him if it fell into a class
recognised by law as ‘tenants’ fixtures. That is to say if it be a
trade, agricultural, or an ornamental fixture we are not concerned,
on the view I take of the case, with ‘tenant’s fixtures.’ The
governing relationship with which this case is concerned is that
of a beneficial owner of the legal estate selling the freehold to a
purchaser. Such a seller can sell as much or as little of his
19
[1902] AC 157.
FIXTURES 65
property as he chooses. Lord Poulett excluded certain named
objects from the sale, but the contract was silent as to the objects
claimed by the plaintiff. I think it was conceded by the defendants
- certainly I so read the contract of sale - that, if the pictures,
statue, and sundial were fixtures at the time of the contract,
they were included in it as part of the freehold (subject of course
to a valuation if they should prove to be tenant’s fixtures). The
preliminary, and basic question is therefore, whether these objects
were at that time fixtures, Since Leigh v. Taylor the question is
really one of fact. The two tests were explained in that case by
the Lord Chancellor (see the report at 158 and 159), who
commented that not the law but our mode of life has changed
over the years; that what has changed is ‘the degree in which
certain things have seemed susceptible of being put up as mere
ornaments whereas at our earlier period the mere construction
rendered it impossible sometimes to sever the thing which was
put up from the realty.’ In other words, a degree of annexation
which in earlier times the law would have treated as conclusive
may now prove nothing. If the purpose of the annexation be for
the better enjoyment of the object itself, it may remain a chattel,
notwithstanding a high degree of physical annexation. Clearly,
however, it remains significant to discover the extent of physical
disturbance of the building or the land involved in the removal of
the object. If an object cannot be removed without serious
damage to, or destruction of, some part of the realty, the case
for its having become a fixture is a strong one. The relationship
of the two tests to each other requires consideration. If there is
no physical annexation there is no fixture, Quic quid plantatur
solo solo cedit. Nevertheless an object, resting on the ground
by its own weight alone, can be a fixture, if it be so heavy that
there is no need to tie it into a foundation, and if it were put in
place to improve the realty. Prima facie, however, an object
resting on the ground by its own weight alone is not a fixture:
see Megary and Wade p. 716. Conversely, an object affixed
to realty but capable of being removed without much difficulty
may yet be a fixture, if, for example, the purpose of: ‘its affixing
be that of creating a beautiful room as a whole’ (Neville, J in Re
Whaley [1908] 1 Ch 615 at 619). And in the famous instance
of Lord Chesterfield’s Settled Estates [1911] 1 Ch 237 Grinling
Gibbons carvings, which had been affixed to a suite of rooms
200 years earlier, were held to be fixtures. Today so great are
the technical skills of affixing and removing objects to land or
buildings that the second test is more likely than the first to be
decisive. Perhaps the enduring significance of the first test is a
reminder that there must be some degree of physical annexation
before a chattel can be treated as part of the realty. The 7th
Earl decided in the early part of the 20th century to install in the
two rooms the panelling and so designed it that there were
recesses for pictures. It is this feature which lends plausibility to
the suggestion that the pictures, fitted into the recesses left for
them, were not to be enjoyed as objects in themselves but as
Part of the grand architectural design of the two rooms. The
Vice-Chancellor rejected this view. So do I when the panelling
was installed in the two rooms the design was either panelled
walls with recesses for pictures to be enjoyed as pictures, or
rooms having walls which were a composite of panelling and
pictures: in other words, the pictures were to be part of a
composite mural. I think the former was the truth. The panelling
was Victorian, the pictures a heterogeneous collection. According
to Sothwbys’ expert they were of different dates in the 17th and
l8th centuries, of different styles, by different hands, the sort of
set anyone could put together at any time, very different, I would
comment, from that unity of design, the ‘Elizabethan Room’ in
the case of Re Whaley. There was a particular Poulett family
interest in ‘The Return’ and in the two coronation portraits but
this interest focused attention not on the design of the room but
on the pictures themselves. Notwithstanding the painstaking and
attractive arguments of Mr Millett for the plaintiff, I find, applying
the second test, that the pictures were not fixtures. They were
put in place on the wall to be enjoyed as pictures. The panelling
presented a technical problem in putting them up. The way the
carpenter, or whoever it was, solved the problem is not decisive
in determining their legal character. But the purpose in putting
them there is.
The statue and the sundial give rise in my judgment to no
difficulty neither was at the time of the sale physically attached
to the realty. The sundial was a small object and, once the Earl
had detached it (as he did years earlier) from its pedestal, it
ceased to be part of the realty. The statue was heavy. It weighed
10 cwt and stood 5 ft 7 in high on its plinth.
There is an issue as to whether it was cemented into the
plinth or rested on its weight. The question is not decisive, for,
even if it was attached by a cement bond, it was (as events
proved) easily removable. However upon the balance of
FIXTURES 67
probability, I agree with the Vice-Chancellor in thinking it was
not attached. The best argument for the statue being a fixture
was its careful sitting in the West Lawn so as to form an integral
part of the architectural design of the west elevation of the house.
The design point is a good one so far as it goes: it explains the
sitting of the plinth, which undoubtedly was a fixture. But what
was put upon the plinth was very much a matter for the test of
the occupier of the house for the time being. We know that at
one time the object on the plinth had been a sundial. At the time
of the sale it was this statue of a Greek athlete. The plinth’s
position was architecturally important it ensured that whatever
stood on it would be correctly positioned. But the object it carried
could be whatever appealed to the occupier for i.e. time being.
Sundial or statue - it did not matter to the design, so long as it
was in the right place - a result ensured by the plinth which was
firmly fixed into the ground. Being, as I think, unattached, the
statue was prima facie not a fixture, but, even if it were attached,
the application of the second test would lead to the same
conclusion.
3.5 Summary of Chapter Three
This chapter has examined and considered the law relating to

fixtures. In the legal sense, land includes not only the ground,
soil or earth, but also all buildings on the land and any chattel
attached thereto. Any chattel or object which is so attached to
or connected to the land or a building as to become part of it is
a fixture. Disputes may arise, under different contexts, as to
whether or not an object or chattel has become part of the land
and therefore a fixture. In determining whether a chattel or
object has become a fixture, regard must be had to the degree
or extent of attachment or annexation, and whether the object
can be severed or removed without causing substantial damage
to the land. Early law placed too much emphasis to this degree
of annexation test. The modern test (purpose of annexation)
looks at the intention or purpose of attachment or annexation;
whether it was for the better enjoyment and use of the chattel
or whether the intention was to effect a permanent improvement
to the land or building. In the former case the object is not a
fixture whereas in the latter case the chattel is a fixture.
Fixtures which if domestic, ornamental or trade fixtures may
be removed by a tenant during the duration of the lease or within
a reasonable time thereafter. The cases that have been excerpted

above have illustrated the context in which disputes may arise
as to whether a chattel or object has become a fixture or not.
The cases have also illustrated the application of the two tests
that can be used to determine whether or not an object has
become a fixture and therefore part of the land or not.
69
Chapter Four
CO-OWNERSHIP: Concurrent Interests in Land

4.0 Introduction
Ownership of land may be vested in a single person or in two or

more persons. Concurrent co-ownership of property describes
the simultaneous enjoyment of land by two or more persons.
The law of co-ownership operates whenever two or more people
enjoy the rights of ownership of property or land at the same
time. The co-owners may be husband and wife, business partners
or friends.
4.1 Types of Co-ownership
There were four forms of co-ownership in land at common law.

These are joint tenancy, tenancy in common, tenancy by entireties
and corparcenary.
4.1.1 Joint Tenancy
If co-owned land is subject to a joint tenancy, each co-owner is

treated as being entitled to the whole of that land. There are no
distinct ‘shares’ and no single owner can claim any greater rights
over any part of the land than another.1 Although as between
themselves joint tenants have separate rights, against everyone
else they are in a position of a single owner.2 Each joint tenant
owns the total interest in the land, along with the other joint
tenants. The nature of the joint tenancy as a single title owned
by more than one person is reflected in the legal attributes of a
joint tenancy discussed below.
4.1.2 The Right of Survivorship (Jus Accrescendi)
By virtue of the principle of Jus accrescendi, if one tenant dies

during the existence of the joint tenancy, their interest in the
joint tenancy automatically passes to the remaining joint tenant(s).
1
Dixon, M., Land Law. London: Cavendish Publishing Limited (1994), p. 70.
2
Hayton, D., Megarry’s Manual of the Law of Real Property (6th ed.), London: ELBS (1982), p. 299.
The right of survivorship takes precedence over any attempted

transfer by will of the ‘share’ of the dead joint tenant because
there is no such ‘share’ to transfer.3
4.1.3 The Four Unities
Before a joint tenancy can exist, the four unities must be present
and it is the presence or absence of these factors that enable us
to distinguish a joint tenancy from a tenancy in common. The
four unities of a joint tenancy are the unities of possession, interest,
title and time.
4.1.3.1 Unity of Possession
This unity applies to all forms of co-ownership. The unity of

possession means that each joint tenant is entitled to physical
possession of the whole of the land.4 Unity of possession means
that there may be no physical division of the land and no
restriction on any joint tenant’s use of each and every part of
the land and this includes the right to participate fully in the fruit
of possession, such as receipt of rents and profits derived from
the land.5
4.1.3.2 The Unity of Interest
The unity of interest means that each joint tenant’s interest in

the property must be identical in extent, nature and duration.6
This means that no joint tenancy is possible between a fee simple
owner and a lease holder. Different qualities of right are
inconsistent with the nature of a joint tenancy as a single title,
jointly owned.7
4.1.3.3 The Unity of Title
The unity of title means that each joint tenant must derive their
title (i.e., ownership) from the same document or act. All joint
tenants must have derived their title from the same document or
conveyance.8
3
4
Bull v. Bull [1955] QB 234.
5
Supra note 3.
6
Howarth, W., Land Law. London: Sweet and Maxwell (1994), p. 54.
7
Ibid.
8
CO-OWNERSHIP: CONCURRENT INTERESTS IN LAND 71
4.1.3.4 The Unity of Time
The unity of time means that the interest of each joint tenant
must arise or vest at the same time as befitting their ownership
of a single title.9
4.2 Tenancy in Common
A tenancy in common differs from a joint tenancy in the following

ways:
(a) The distinguishing feature of a tenancy in common is
that each co-owner has a distinct and quantifiable share
in the land. Tenants in common hold in undivided shares
i.e., they have distinct shares which have not yet been
divided. In other words, a tenant in common can point
to a precise share of ownership of the land e.g., one-
half, three-quarters, etc.
(b) There is no Jus Accrescendi or right of survivorship.
The size of the tenant in common’s share is unaffected
by the death of any other tenant in common, whose
share passes under his will or intestacy.10
(c) Of the four unities under a joint tenancy only the unity
of possession is essential.11 A tenancy in common may
come about through the severance of a joint tenancy.
4.3 Co-parcenary and Tenancy by Entireties
Co-parcenary as a form of co-ownership arose by operation of

law on the death of the holder of unbarred fee tail leaving
daughters and no issue through the male line.12 In such a situation
the daughters would own and hold the land as co-parcerners.
This form of co-ownership resembled a tenancy in common in
that there was no right of survivorship and further in that the
interest of co-parcerners could be of different sizes.13 It differed
from a joint tenancy in that it arose only by operation of law.
A tenancy by entireties arose where land was conveyed to a
husband and wife in a way that would otherwise have created a
joint tenancy.14 It resembled a joint tenancy in that there was a
9
Ibid.
10
Ibid.
11
Ibid., at p. 302.
12
13
Ibid.
14
Ibid., at p. 147.
right of survivorship. It was distinguishable from a joint tenancy

in that neither spouse could alienate his or her interest without
the agreement of the other.15 By the provisions of sections 1
and 5 of the Married Women’s Property Act of 1882, no new
tenancy by entireties was capable of being created after the
said year.
4.4 Provisions of the Lands and Deeds Registry Act Relating

to Co-ownership
Section 51 of the Lands and Deeds Registry Act16 provides that:
(1) Any two or more persons named in any instrument

under Parts III to VII, or requiring to be registered
under this Act as transferees, mortgages, lessees or
proprietors of any land or estate or interest therein,
shall, unless the contrary is expressed, be deemed to
be entitled as joint tenants with right of survivorship,
and such instrument, when registered, shall take effect
accordingly.
(2) Any statement or reference contained in any
document or instrument mentioned in subsection (1)
which specifies the shares in which the property is
to be held shall be deemed to express that a joint
tenancy is not to be created.
(3) When two or more persons are entitled as tenants in
common or joint tenants to undivided shares in any
land, only one Provisional Certificate or Certificate
of Title shall be issued in respect of that land, and
the Certificate shall be handed or delivered to the
person whose name first appears as a Registered
Proprietor on such Certificate and, on any transfer
of any undivided share or interest in such land, the
Provisional Certificate or Certificate of Title, as the
case may be, shall be cancelled and a new
Certificate issued.
15
Ibid.
16
Chapter 185 0f the Laws of Zambia.
4.5 Case Law
(a) Tenants in common in equal shares – Each Tenant is

entitled equally to the Rentals
Balvant Popatal Potal v. Amrat Bhaga – Supreme Court of Zambia

Appeal No. 104 of 1999
[The Facts of the case appear from the Judgment of the Supreme
Court delivered by MUZYAMBA, JS]
This is an appeal against a dismissal of the appellant’s claim for

registration of his interest in subdivision F of Stand 3515 Lusaka
as a tenant in common and in equal share with the respondent
and for an account of all the rentals received by the respondent
in respect of the same property.
The facts in this case are that in 1979 the parties bought the
stand from one Noran Patel. At the time the respondent was a
Zambian citizen and the appellant was a British subject. The
property was registered in the name of the respondent as the
appellant was under the mistaken impression that as a non-
Zambian he could not own an interest in land. They then engaged
a contractor and expended their resources and built two identical
flats on the land. After completion, the respondent occupied his
flat. The appellant did not because the respondent who had a
daughter at Lusaka International School asked him to lease his
flat so that he could raise school fees for his daughter. The
appellant agreed. And when the respondent was about to migrate
he told the appellant that he would sell his flat and reimburse the
rentals for his flat. However, the respondent left the country
without fulfilling his promise. The appellant then brought an action
against the respondent which was unsuccessful and hence this
appeal.
The main ground of appeal is that the learned trial Judge
erred in law in dismissing the claim because in1979 when the
property was acquired non-Zambians were not barred from
owning land or an interest in land. The appellant filed and relied
on his written heads of argument. The respondent did not appear
in this court and in the court below.
We have considered the evidence on record, the Judgment
of the learned trial Judge and the appellant’s written submissions.
The learned trial Judge found as a fact that the appellant had an
interest in the stand but refused to order registration of his interest
on the ground that he was a non-Zambian. This was a

misdirection on her part because in 1979 when the parties
acquired the stand there was no disqualification. The
disqualification came on 1 April 1985. Section 13 A (1) of the
Land (Conversation of Titles) (Amendment) (No. 2) Act No.15
of 1985 provides:
13 A (1) No land in Zambia shall, as from 1 April

1985, be granted alienated, transferred or leased
to a non-Zambian: Provided that nothing herein
shall be so construed as to affect any interest or
right acquired by any person prior to that date.
The section is explicit. We would therefore allow the appeal

and order registration of the appellant’s interest in the stand as a
common tenant in equal shares with the respondent. For this
purpose we order rectification of the register at Lands and Deeds
Registry by cancellation of the certificate of Title in the name of
the respondent and issuance of a new certificate in the joint
names of the parties. We also order an account to be taken of
all the rentals for the two flats from June 1979 before the Deputy
Registrar. Such rentals to be apportioned equally between the
parties…
The preceding case did not end here following the order and direction by
the Supreme Court. It later transpired that the respondent in the above
appeal had in fact sold one flat to a third party which the appellant used
to occupy. This, including the rentals ordered to be apportioned equally
under the Supreme Court Judgment, was later on the subject of another
litigation in the High Court.
In the High Court the plaintiff Balvant Popatal (who was the appellant
in the Supreme Court case) claimed from Hp Gauff KG and Amrat
Bhaga (who was the respondent in the Supreme Court case), for, inter
alia, the following reliefs:
(a) The sum of US$95,835.29 being rentals due and payable to the
plaintiff for the period June 1991 up to the 31st December 2002,
being rentals due and payable in respect of the plaintiffs share in
Stand No. 3515/F, Rhodes Park, Lusaka.
(b) Restoration of S/DF of Stand No. 3515, Lusaka to the original
position of two flats.
(c) An order that the plaintiff is entitled to the flat in front and facing
the Great East Road.
(d) A declaration or order that the defendant is trespassing on the
plaintiff’s portion of S/D of Stand No. 3515.
(e) Order for payment of mesne profits by the defendant to the plaintiff
for the period from 1991 up to the date of payment for trespass.
The case is excerpted below:
(b) Tenants in common in equal shares – one Co-owner cannot

sell without the consent of the other.
Popatal v. Gauff And Another – 2002/HPC/0486
[The facts of the case appear from the Judgment of CHIBOMBA, J]
…The facts of this case are that the plaintiff and one Amrat
Bhaga were tenants in common and in equal shares of S/D F of
Stand No. 3515, Rhodes Park, Lusaka. The Defendant, a
company incorporated under the Companies Act, Chapter 388
of the Laws of Zambia allegedly purchased the said property
from one Amrat Bhaga, the third party in this case.
It was the Plaintiff’s case at trial that the Defendant, in June
1991, took possession of the said property and altered the property
from two identical flats into offices. Further that the flat facing
the Great East Road was his while Amrat Bhaga took possession
of the flat at the rear. Further that upon learning that Amrat
Bhaga was about to leave Zambia for good and was selling his
personal effects including the property in question, he lodged a
Caveat on the said property at the Lands and Deeds Registry
and obtained an injunction restraining Amrat Bhaga from
disposing of the property. That despite written warnings that he
sent through his lawyers, the Defendant proceeded to buy the
said property from Amrat Bhaga.
It was the Plaintiff’s further case that he filed an action in
the High Court and on appeal to the Supreme Court, the Supreme
Court, in its Judgment of 12th October and 2nd November 2000
under SCZ Appeal No. 104 of 1999 ordered that an account be
taken of all the rentals from the two flats from June 1979 before
the Deputy Registrar and that such rentals be apportioned equally
between him and Amrat Bhaga and that the Supreme Court
further ordered that the Certificate of Title that was in the name
of Amrat Bhaga should be cancelled and that a new Certificate

of Title in his name and that of Amrat Bhaga be issued by the
Commissioner of Lands.
The Plaintiff claimed that since the Defendant took possession
of his flat in June 1991, to date it has not paid rent of his share of
the property.
The Plaintiff alleged further that since taking possession of
the property, the Defendant has altered the state of the flats and
removed some of the fixtures and other improvements. That
the court should therefore order the Defendant to restore the
flat to its original state of 1991 of two residential flats.
On the other hand, in the defence filed, the Defendant has
denied liability and claimed that the Plaintiff was not at the
material time a tenant in common and in equal shares with Amrat
Bhaga as he only became so on 2nd November 2000 via the
Judgment of the Supreme Court and that prior to that date, Amrat
Bhaga was the sole title holder and that in 1991, it bought the
said property from the registered sole leasehold owner, Amrat
Bhaga and that it thereafter became owner and took possession
of its property and made the alterations complained about since
it bought the property for use as offices.
The Defendant denied owing the Plaintiff the alleged sum as
rentals on ground that it was never a tenant of either the Plaintiff
or the third party.
The Defendant alleged further that the Supreme Court
Judgment of 12th October and 2nd November 2000 did not order
it to pay rent to the Plaintiff and that it was not a party to that
litigation and that therefore, the orders in the said Judgment do
not bind it and that it was not given chance to be heard under
the said litigation concerning the property which it owned. Further
that it was entitled to make the alterations complained about
and to put fixtures and improvements on the property because it
purchased it and that if there was any rent due to the Plaintiff,
then the same should be claimed from Amrat Bhaga.
The Defendant also filed a Counter-Claim against the Plaintiff
wherein it claims damages for wrongful eviction, damages for
trespass, interest thereon and costs on ground that it was
wrongfully evicted by the Plaintiff from the said property on 6th
March and on 22nd November 2002. Further that in terms of
the Supreme Court Judgment, the Plaintiff was only entitled to
one share of the property but that the Plaintiff evicted the
Defendant from the other share of the property to which it is a
registered owner.
In the Defence to the Counter-Claim, the Plaintiff claimed
that since the Defendant had not purchased Amrat Bhaga’s
property but the whole property inclusive of his share on which
he had lodged a caveat and that since his Advocates had warned
the Defendant’s Advocates against taking possession of the
Plaintiffs flat, the Defendant is not entitled to the relief sought in
the Counter-Claim.
Further, that in accordance with the Supreme Court Judgment
of 12th October and 2nd November 2000, he was a tenant in
common and in equal shares with Amrat Bhaga and has been
so since 1979 when he and Amrat Bhaga acquired the property.
Further that the rent claimed to be payable was in respect of the
period 1991 to date and that this could not be claimed from
Amrat Bhaga since it was the Defendant that was in occupation
of his property at this time. Both Parties called Witnesses.
The Plaintiff testified as PW1. It was his evidence that on 4th

October 1978, he and Amrat Bhaga built two identical flats on
the said property and that on completion, Amrat Bhaga chose
the flat at the back while he got the flat facing the Great East
Road. PW1 testified that he put his flat on rent and that Amrat
Bhaga used to collect rentals. That when he learnt that Amrat
Bhaga was selling the property, he put a Caveat on the property
on 8th August 1990 and obtained an injunction to prevent Amrat
Bhaga from selling the property.
In Cross-examination, PW1 told the court, inter alia, that
when he learnt that the Defendant wanted to buy the property,
he put a Caveat and obtained an injunction. That however, the
title deed was in Amrat Bhaga’s name and that in accordance
with the Contract of Sale, Amrat Bhaga was selling as beneficial
owner and title holder. That Amrat Bhaga sold the entire property
including his portion of the property. That even though an
Assignment was registered at Ministry of Lands, the same was
cancelled in 2000.
The Plaintiff testified further that there was no lease
agreement between him and the Defendant. That he had warned
the Defendant that it was trespassing on his property and that
the sum of US$95,835.29 claimed as rentals was from the time

the Defendant took possession of the property and that the Deputy
Registrar, on 16th April 2003, assessed the total rentals to be
shared equally between him and Amrat Bhaga at US$103,400
effective from June 1979 to that date. That in accordance with
the document at page 34 of the Plaintiff’s Supplementary Bundle
of Documents, Amrat Bhaga was supposed to pay him rent but
that his claim for rent from the Defendant was from 1991 when,
the Defendant took possession of his property and not from
1979.
PW1 admitted evicting the Defendant on the two occasions
complained about. He also admitted that his interest in the
property arose via the Supreme Court Judgment of 2nd
November 2000. He confirmed that the title deed at page 15 of
the Bundles of Documents shows that title was in his and the
Defendant’s names but that the same was cancelled and another
title deed was issued in his name and that of the Third Party.
The Plaintiff said his flat is the one in front facing the Great
East Road. That the Judgment by the Supreme Court did not
specify the flat that he should get. Further that the Defendant
has not restored his flat to its original state and that he is also
claiming mesne profit because he lost interest that he could have
made as profit from the flat.
PW2 was Ismail Ali. It was his evidence that between 1997
and 1980, he occupied the flat facing Great East Road which
his employers, Century Holdings rented for him and that Amrat
Bhaga resided in the flat at the back.
In cross-examination, PW2 insisted that he used to stay in
the flat facing the Great East Road and that the landlord was
Amrat Bhaga who was also receiving the rentals.
PW3 was Mr Kantilal Naran Govind Solanki. It was his
evidence that he has personally known Amrat Bhaga since 1974
and that Amrat Bhaga used to occupy the flat at the back. He
said he used to visit Amrat Bhaga very often at the said property
as he was his friend.
In cross-examination, PW3 confirmed that the Plaintiff was
his friend and that the Plaintiff had asked him to testify and that
in 1979, Amrat Bhaga told him that the flat facing the Great
East Road belonged to the Plaintiff.
On the other hand, Mr Joackim Pfeffer, the Defendant’s
former Branch Manager in Zambia testified as DW1. It
was his evidence that in November 1991, the Defendant
purchased the said property from Amrat Bhaga and that in
accordance with the Certificate of Title No. 46924 of 5th April
1979, Amrat Bhaga was the sole registered owner of the property
and that the Defendant took possession and converted it and
used it as offices by making a number of developments and
fittings. DW1 told the court further that the Defendant was not
a tenant of either the Plaintiff or Amrat Bhaga and that therefore
no rentals were due from the Defendant to the Plaintiff.
In Cross-examination, DW1 told the court, inter alia, that
the Caveat on the property was not brought to his attention
because at the time, he was not based in Zambia. That the
Plaintiff’s Advocates had written to the Defendant stating that
Amrat Bhaga had no right to sell the property and that the Plaintiff
was commencing legal action against Amrat Bhaga. He told the
court that the Defendant was not a party to the action between
the Plaintiff and the Third Party which culminated into the
Supreme Court Judgment of 2 November 2000 and that the
Judgment did not state that the Defendant was a co-owner with
the Plaintiff but with Amrat Bhaga. That the Defendant was
surprised to receive title deed in joint names with the Plaintiff.
That the letter at page 33 of the Plaintiff’s Bundle of Documents
was informing the Defendant that the Certificate of Title in the
Plaintiff’s and Defendant’s names was erroneously issued
because there was a Caveat and an injunction on the said
property restraining the vendor from disposing of or transferring
the property to someone else. That the document at page 6 of
Volume 2 of the Plaintiff’s Supplementary Bundle of Documents
was a Certificate of Title in the name of Bhaga Amrat Naran
and Popatal Balvant issued on 6 November 2004. That the
Defendant should not be liable to pay rent for the use of the
property to the Plaintiff because the Defendant bought the
property and owns it.
DW2 was Dorathea Petronella Van Der Riet, the
Defendant’s Accountant from March 1988. It was her evidence
that the Defendant purchased the property in question from Amrat
Bhaga pursuant to the Contract of Sale of 10th April 1991 and
that Amrat Bhaga was the registered owner of the said property
as evidenced by the Certificate of Title in question. That the
Defendant took possession of the property and converted it into
offices after making numerous developments and putting fittings.
That on 6 March and on 22 November 2002, the Plaintiff evicted
the Defendant from the said property. That the Defendant does
not owe the Plaintiff the money claimed as rentals because the
Defendant was not the Plaintiff ‘s tenant.
In Cross-examination, DW2 told court, inter alia, that she
paid the purchase price on behalf of the Defendant to Amrat
Bhaga. That she did not take part in the decision to purchase
the property …The major question in this case is whether the
Plaintiff is entitled to the rentals and mesne profits claimed. To
ably determine this question, it would be prudent to first deal
with issues pertaining to ownership of the property and whether
there was a valid transfer of title of the property by one Amrat
Bhaga to the Defendant. Related to this question is the question
whether the Defendant was a bonafide purchaser for value
without notice.
The Supreme Court, in its Judgment of 12 October and 2
November 2000, in the case commenced by the Plaintiff in the
current case against Amrat Bhaga, the Third Party in the current
case, has already settled the facts and put the case in its proper
perspective as regards the ownership of the property in question.
The Supreme Court in its Judgment and found as a fact that:
... In 1979 the parties bought the stand from one

Noran Patel. At the time the respondent was a
Zambian the citizen and the appellant was a British
subject. The property was registered in the name
of the respondent as the appellant was under the
mistaken impression that as a non-Zambian he
could not own an interest in land. They then
engaged a contractor and expended their resources
and built two identical flats on the stand. After
completion the respondent occupied his flat. The
appellant did not because the respondent who had
a daughter at Lusaka International School asked
him to lease his flat so that he could raise school
fees for his daughter. The appellant agreed And
when the respondent was about to migrate he told
the appellant that he would sell his flat and
reimburse the rentals for his flat. However, the
respondent left the country without fulfilling his
promise. The appellant then brought an action
against the respondent which was unsuccessful
and hence this appeal.
In upholding the appeal, the Supreme Court stated that:
We would therefore allow the appeal and order

registration of the appellant’s interest in the stand
as a tenant in common in equal shares with the
respondent. For this purpose we order rectification
of the register at Lands and Deeds Registry by
cancellation of the certificate of title in the name
of the respondent and issuance of a new certificate
in the joint names of the parties. We also order an
account to be taken of all the rentals for the two
flats from June 1979 before the deputy registrar.
Such rentals to be apportioned equally between
the parties.
The Defendant claimed that it bought the said property from

Amrat Bhaga and immediately thereafter, it took possession and
renovated the flats and changed it from two identical residential
flats into offices, but that the Plaintiff subsequently evicted it
from the said premises on two occasions for which it claims
damages in the Counter-claim.
On the question whether the Deed of Assignment between
the Defendant Amrat Bhaga was of any legal effect, it is my
considered view that the Deed of Assignment in question is
invalid and therefore null and void and of no legal effect because
Amrat Bhaga did not have power to sell the property including
that of the Plaintiff without the consent of the Plaintiff. Amrat
Bhaga was not the sole owner of the property but a tenant in
common in equal shares with the Plaintiff. As such, he could not
effectively transfer title because he did not in fact have title to
transfer. Amrat Bhaga could not sale what he did not have.
Further, in view of the correspondence on record between
the Plaintiff’s then advocates, and the Defendant’s then
advocates, the Defendant cannot successfully argue that it was
not aware of the Plaintiff’s interest in the property. In fact, DW1
agreed being aware of the correspondence from the Plaintiff’s
advocates advising the Defendant about the Plaintiff’s interest
in the property and the course of action that the Plaintiff intended
to take to protect his interest. It will also be noted that at the
time of the purported sale and transfer of title, a Caveat had
been lodged on the property which prohibited the transfer of
title. Despite this Caveat and warning from the Plaintiff’s
Advocates, the Defendant went ahead to purchase the property
from Amrat Bhaga. The Defendant cannot therefore successfully

claim that it was a bonafide purchaser without notice.
In the case of George Andries Johannes White v. Ronald
Westerman,17 the court stated that where a Party does not have
title to the land he cannot assign it to a third party and that
without any assignment in this respect, it is null and void. In the
case of Mwenya and Another v. Kapinga,18 the court stated
that where a purchaser had notice of any other party’s interest
in the property, he cannot be a bonafide purchaser for value
without notice. Furthermore, the Judgment by the Supreme Court
ordered the cancellation of the certificate of title that the
Defendant relied upon as supporting its claim of right in the
property. The Judgment further ordered and directed that a new
certificate of title be issued in the names of the Plaintiff and
Amrat Bhaga. The Defendant cannot therefore rely on that
certificate of title as supporting its claim of right to the property
because the same was cancelled and is of no legal effect at all.
I now come to the major question in this case which is whether
the Plaintiff is entitled to payment of rentals and mesne profits
claimed from the Defendant. It is a fact that after the Defendant
purportedly purchased the property, it took possession and
occupied the property and made alterations and changed the
property from that of two identical residential flats into offices.
It is also a fact that there was no relationship of landlord and
tenant between the Plaintiff and the Defendant. What is there
however, is the fact that the Defendant took illegal possession
of the Plaintiff’s property and converted it to its own use. The
Defendant therefore committed the tort of trespass.
In my considered view, it is this conduct by the Defendant
that entitles the Plaintiff to recover damages for wrongful
conversion and trespass. I therefore agree that these damages
should be in form of monthly rental payments.
As to the actual rentals payable, it will be noted from the
documents on record that the Deputy Registrar, as directed and
ordered by the Supreme Court in its Judgment referred to above,
has already assessed the rentals payable for the said property. I
am however not certain on how the Plaintiff arrived at the sum
of US$95,1835.29 claimed as rentals and if this was based on
the rate assessed by the Deputy Registrar. It is therefore only
fair that the Deputy Registrar assesses the rentals due from the
date when the Defendant took occupation of the property up to
17
(1983) ZR 135.
18
(1998) ZR 23.
when it vacated the property. I accordingly enter Judgment for
the Plaintiff in the sum to be assessed by the Deputy Registrar
as rentals for the period the Defendant was in possession of the
said property up to when the Defendant vacated the property.
It is further ordered that the said sum shall attract interest at
7% per annum effective ‘from 13th December 2002 up to
Judgment date and thereafter, at 4% up to date of full payment.
With respect to the claim for mesne profits, it is my considered
view that the Plaintiff cannot recover mesne profits as I have
already awarded interest on the rentals awarded. I find no
aggravating circumstances to justify a separate award of mesne
profits.
With respect to the question whether the Plaintiff is entitled
to have the property restored to its former state of two identical
residential flats, it will be noted from the record and indeed from
the testimonies by the Defendant’s own witnesses, that the
Defendant admits altering the said property and to converting it
into offices and to putting fittings and to making other changes.
The Defendant also admits that it did all this without the Plaintiff’s
consent.
I have no doubt that the Plaintiff is entitled to the order sought
in this respect. I accordingly order and direct that the Defendant
shall restore the said property to its former state of two identical
residential flats. It is further ordered that the Defendant shall do
this within 21 days from to day.
On the question as to which flat the Plaintiff is entitled to,
there is no doubt that the Plaintiff is entitled to the flat facing the
Great East Road as the evidence on record shows that that was
his flat whereas the other flat belonged to Amrat Bhaga. The
Plaintiff s claim in this respect is supported by the evidence of
PW2 and PW3. I accordingly order and direct that the Plaintiff
is entitled to the flat facing the Great East Road and that the
Defendant shall forthwith hand over the keys to the said flat to
the Plaintiff.
On the Defendant’s claim that it was only after the Supreme
Court Judgment that the Plaintiff’s interest in the property arose,
it is my considered view that if properly read, the Judgment by
the Supreme Court did not say that the Plaintiff’s interest in the
property arose then, but that the Plaintiff was a tenant in common
in equal shares with Amrat Bhaga. The Plaintiff has been so,
effective from the date when the duo acquired the property in
question and thereafter, had the two flats constructed on the
said premises with each providing resources.
In view of the above findings, the Defendant’s claim in the

Counter claim for damages for wrongful eviction and trespass
fails because it was the Defendant that trespassed and illegally
took possession of the Plaintiff’s property and thereafter
converted it to its own use and altered it from residential property
to offices. Therefore, the Defendant’s claim in this respect fails
in its totality. The same is dismissed.
(c) Sharing of a jointly owned property on dissolution of

marriage – husband and wife are beneficiary entitled in
equal shares.
Anne Scott v. Oliver Scott -SCZ Judgment No. 3 of 2007- Appeal

No.122 of 2004.
(The facts of the case appear from the judgment of the Supreme
Court delivered by SILOMBA, JS)
…This appeal is against the ruling of the learned Deputy Registrar

dated the 20th of May 2004. The background to the ruling is that
the appellant and the respondent were lawfully married in
November, 1993 and after more than ten years of togetherness
they decided to end their relationship by judicial process. There
was no child born during the marriage. The issue that arose as a
consequence of the dissolution of the marriage was property
adjustment and settlement pursuant to Section 21 (2) of the
Matrimonial Causes Act 1973. The application for property
adjustment and settlement before the learned Deputy Registrar
was by summons supported by an affidavit filed by the respondent.
The appellant filed an affidavit in opposition.
The gist of the respondent’s evidence, both affidavit and oral
evidence, was that Stand No. 5672, Kalundu, Lusaka, was bought
in 1994 during the subsistence of the marriage. The respondent
bought the stand using his own resources. It was, however, jointly
owned by the respondent and the appellant as per the certificate
of title relating to the stand. According to the evidence of the
respondent, Stand No. 5672, Kalundu, has four big houses, one
bedroom cottage and one bed-sitter. The main house with four
bedrooms is not complete.
The respondent’s evidence was that he paid for all the
constructions on the Kalundu stand, except for the paints and
pipes the appellant bought for one of the houses. He rejected the
claim of the appellant that she made more contribution to
development of the stand than himself. The respondent, apart
from his regular employment with Zambeef, was also in the
business of buying and selling cars and the profits realised from
there went into the construction of the houses on the Kalundu
stand.
The respondent recalled that the only other contribution made
by the appellant was the landscaping she did to the lawns of the
Kalundu stand. He rejected the claim that the appellant contributed
building materials, which she obtained on credit from her employer
because it was the respondent who ended up clearing the debt.
On movable assets, the respondent testified in the court below
that he had two cars for personal use; he gave one to the appellant
and kept one; that although the appellant was in gainful employment
and later did clearing business, the respondent never saw proceeds
of her business or earnings from her employment.
In consideration of what the appellant did in the development
of the Kalundu stand, the respondent proposed to the trial court to
give her a three-bedroomed house valued at K80,000,000.00 one
motor vehicle, assorted furnishings and electrical household
equipment valued at K40, 000,000.00 and other items valued at
K6,000,000.00. The latter were already given to the appellant.
On Stand No. 10514, Olympia Park in Lusaka, the respondent
told the trial court that he bought the land alone and put up a wall
fence, a gate and bed sitter. As far as he was concerned, the
appellant never made any contribution to the development of the
stand. Unlike the Kalundu stand, Stand No. 10514, Olympia Park,
was not generating any income in form of rent. The title to the
Olympia Park stand was, according to the respondent, in his name;
that he acquired the stand during his marriage to the appellant for
the benefit of his son, Jerome, who was not a child of the marriage.
The fact that the stand was for Jerome was made known to the
appellant who was told to stay away from it.
In cross-examination, the respondent admitted that the appellant
contributed something to the Kalundu stand and that he had no
objection to the valuation and sale of the property. He, however,
rejected the sale of the Olympia Park house because the appellant
had no claim to the property especially that it was his alone. On
household goods, the respondent was prepared to share.
The appellant’s evidence in opposition was that Stand No. 5672,
Kalundu was purchased by herself and the respondent through a
4x4 Toyota vanette and cash. Her evidence was that after
purchase they developed the stand jointly. On her part, she obtained
tiles, showers and baths from her employer on credit. It was
apparent from her evidence that the improvements on the Kalundu
stand were built in stages. She testified that after they had built
the first two houses, the construction of the rest of the houses
was, according to her, financed with money from rentals of the
finished houses. At the time she left all the houses were complete,
except the four bed roomed house.
She rejected the respondent’s claim that he developed the
Kalundu stand from the profits he generated from the sale of
motor vehicles. As far as she was concerned, the car business
was a family business because she also assisted in the clearing of
vehicles and contributed money to buy more cars. She accordingly
claimed a share in the profits realised from the sale of cars. She
prayed for an equal share in the Kalundu property based on the
valuation….
The foregoing evidence, including the decided cases cited by
the parties, was duly considered by the learned Deputy Registrar.
On Stand No. 5672, Kalundu, the learned Deputy Registrar noted
that the property was bought and registered in the joint names of
the parties during the subsistence of their marriage.
Notwithstanding the contention of the respondent that the
contribution from the appellant was minimal, the learned Deputy
Registrar thought that she had an interest in the property and,
therefore, entitled to a share on divorce. He found that the
appellant was entitled to 1x2 and 1x3 bedroomed houses, which
formed part of the Kalundu property and ordered that they be
assigned to her for her absolute use and benefit.
On rentals, the learned Deputy Registrar noted that the
appellant’s claim was 50% share in the rentals realised from the
Kalundu and Olympia park property. He also noted the evidence
of the respondent that for most of the time he had no tenants in
the Kalundu property and that if there was any rent realised it
was used in the improvement of the structures on the stand. Since
the appellant had been given a share of the Kalundu property, the
learned Deputy Registrar found that there were no rentals on
which the respondent could be held accountable to the appellant…
The appellant has on appeal advanced eight grounds of
appeal…with regard to ground three, counsel submitted that it
was not in dispute that Stand No. 5672, Kalundu, Lusaka, was
jointly owned by the appellant and respondent. The issue arising
from a jointly owned property on the dissolution of a marriage,
was how to share such property, he said. He relied on Halsbury’s
Laws of England, 3rd edition, at page 841 to reinforce the principle
that where property is jointly owned the husband and wife are
beneficially entitled in equal shares on the dissolution of the
marriage….
We have carefully considered the evidence on record that was
adduced before the learned Deputy Registrar. We have also
considered the decided cases and the authorities that were cited
to us during the submissions of counsel with due diligence… We
note that grounds two, three and four relate to the sharing of the
structures on Stand No. 5672, Kalundu, Lusaka including rentals
that may have accrued to the respondent after the dissolution of
the marriage. There is indisputable evidence that the Kalundu
stand is held on a joint lease. 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.
One of the implications is that land held under a joint tenancy
is indivisible as between the joint holders; this is to be contrasted
from land held in common and in distinct shares. The other
implication is that once land is held jointly it is governed by the
principle, of jus accrescendi, which literally means the right of
survivorship between joint tenants. 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. On the basis of
the principle, there was no need to call for evidence to show the
contributions each party made as that was totally irrelevant.
Having explained the law on joint tenancy, we now consider
how the Kalundu stand should be shared now that there is no
marriage relationship. Because the interest of the appellant and
that of the respondent in the stand is indivisible, we find that it
was wrong, in the absence of fraud or mistake in the manner the
stand was jointly owned, for the learned Deputy Registrar to award
one or two structures to the appellant in that such an award had
the potential of either subordinating the appellant’s interest to that
of the respondent or vice versa. In our opinion, the two should be
treated as beneficially entitled in equal shares.
The first step towards the sharing of the property in equal
shares is to ascertain the value of all the improvements on the
stand by way of valuation. The valuation can be done by a Valuation
Officer acceptable to both parties and in the absence of an
agreement by Valuation Officers nominated by the parties.
Once the value of the improvements is ascertained, we order
that the stand be sold and the proceeds shared on equal basis.
Alternatively, if either of the parties has sufficient funds of his or

her own and is desirous of keeping the stand he or she can do so
by paying the other party his or her 50% share based on the
Valuation. To that extent, the order of the learned Deputy
Registrar, granting to the appellant two structures only, is reversed
and set aside.
The issue of rent has been raised and it is the contention of the
appellant that she is entitled to 50% of the rentals paid to the
respondent over the Kalundu stand. We have examined the
evidence on this subject and our honest view is that the evidence
is not clear but rather speculative. In fact, the appellant’s evidence
is that while she was in marriage Stand No. 5672, Kalundu, was
the matrimonial home; that after the 3rd house was completed the
rest of the structures were built with rent from the finished houses
and that when she left the fourth house (the main house) had not
been finished.
With this background, she testified that in March, 2003 when
she left the matrimonial home she collected K1,500,000 as rentals.
She has given the rental levels of the structures but she does not
say if the houses were rented and if so to whom and from which
period the rents should be calculated for the purposes of sharing.
On the other hand, the respondent’s evidence is that for most
of the time he had no tenants for the Kalundu property; that the
rent he ever got was used to finish or enhance the structures on
the stands. In view of the lack of clear and convincing evidence
we have not been able to make any finding in favour of the
appellant. With regard to the Olympia Park house the respondent’s
evidence was that it never generated any rent and the appellant
has not rebutted the assertion.
However, the point must be made that if the evidence was
clear enough the appellant would have qualified for a share of the
rentals on the Kalundu stand on the principle that the stand was
held on a joint lease. The disqualification alluded to by the leaned
Deputy Registrar, based on the fact that the appellant had already
benefited from the award of one or two structures, was wrong
and at variance with the principle underpinning a joint tenancy….
4.6 Summary of Chapter Four
This chapter has examined and considered the nature of co-

ownership of property. Co-ownership of land deals with cases
where two or more persons are entitled to the simultaneous
enjoyment of land. Two forms of co-ownership of property exist
today. These are Joint Tenancy and Tenancy in Common. In a
Joint Tenancy each co-owner is treated as being entitled to the
whole of that land and there are no distinct ‘shares’. The
outstanding feature of the joint tenancy is the right of survivorship
and the four units. A Tenancy in Common exists when two or
more persons own an ‘undivided share in land’, giving unity of
possession but where no other unities are necessary and where
there is no right of survivorship. Section 51 of the Lands and
Deeds Registry Act does recognise the two forms of co-
ownership that exist today. Under a Tenancy in Common in
equal shares as well as under a joint tenancy each tenant is
entitled equally to possession of the land as well as rentals, if the
property is on lease. One co-owner cannot sell without the
consent of the other co-owner(s). This has been illustrated by
the two cases that have been excerpted under the case law
segment herein.
Co-ownership may be terminated by partition, sale, Union in
sole ownership where the legal interest finally vests in one person
through the right of survivorship or release by one joint tenant of
his interest to another or where tenants in common leave their
interest by will or intestacy to a remaining co-owner.
Chapter Five
LEASES AND LICENSES
5.0 Introduction
A lease is an interest or estate in land of a defined duration. The

terms lease, term of years, demise and tenancy are often used
interchangeably, though a tenancy is normally of a shorter
duration. The landlord is often referred to as grantor or lessor
and the tenant as grantee or lessee.
A licence is a permission from the owner of land given to
another person (who may or may not own land), to use the land
or do some act on the land which would otherwise be unlawful.
A licence prevents what would otherwise be a tort of trespass.
In general, licences lack the qualities of interest in land, namely,
they are not transferable and will not be enforceable against
third parties. A lease, on the other hand, is a proprietary interest
in land. It is transferable and capable of binding third parties.
A lease, apart from being a proprietary interest in land, is
also a contract in that it is an agreement between the landlord
and tenant. As a contract, a lease is subject to the principles of
contract law.1 A lease is more than a contract between the two
parties in that as an interest in land it is capable of binding a third
party.2
5.1 The Essential Characteristics of a Lease
A lease will be valid if two requirements have been satisfied.

The essential qualities of a lease are that it gives a person the
right of exclusive possession of property for a defined or certain
duration.
5.1.1 Certainty of Duration
In general, a lease must have a certain beginning and a certain

ending. The interest granted by the lease to the tenant must be
for a defined and certain period of time. This means not only
that the lease must start at a clearly defined moment, but also
1
2
Ibid.
3
Dixion, M., Land Law. London: Cavendish Publishing Limited. (1994), p. 122.
that the length of the term granted must be certain.3 At the

commencement of the lease, it must be possible to define exactly
the maximum duration of the lease, even if it is possible to end
the lease at some time before this.4 Any lease or intended lease
that fails to satisfy this requirement as to certainty of duration is
void because it does not amount to a term certain. For example,
in Lace v. Chandler,5 a lease for the duration of the Second
World War was held void for being of uncertain maximum
duration. In William Jacks and Company (Z) Limited v.
O’Connor (in his capacity as Registrar of Lands and Deeds)
Construction and Investment Holdings Limited
(intervening),6 a purported agreement for a lease was held to
be invalid on the ground that it contained no date of
commencement of the proposed lease.
5.1.2 Exclusive Possession
The right to exclusive possession is the right to exclude all others

from the premises including the landlord. As a basic proposition,
a lease will exist when the occupier of land has been granted
exclusive possession of the premises. If such a right is not
conferred upon the grantee then it is likely that he holds merely
a licence, which is a personal revocable interest.7 If the grantor
remains in general control of the demised premises, a licence is
likely to be inferred. For example, in Appah v. Parn Cliffe
Investment Limited,8 the defendants carried on business of
providing rooms for residential occupation at 15s a day or £5 a
week. The building had been and was still described on the
outside as a hotel. The house was divided into seventeen rooms.
No meals were provided but the charges covered certain services
in the individual rooms, viz: daily cleaning and making of beds,
weekly supply of fresh linen and communal services such as
electricity and cleaning of staircases and parts of the building
used in common. The defendants reserved to themselves a
general right of entry to the rooms and entered once a month to
clear the coin box of the gas meter. The plaintiff’s room was
broken into and all her belongings stolen. In an action by the
plaintiff claiming damages against the defendants for negligence,
4
Ibid.
5
[1944] KB 368.
6
(1967) ZR 109. The case is excerpted under chapter 17 of this book dealing with the Lands and Deeds Registry
Act.
7
8
[1964] 1 WLR 1064.
LEASES AND LICENSES 93
it was common ground that if the plaintiff were a tenant of the
room, the defendants were under no obligation to exercise care
in relation to her property, but that if her status were that of a
licensee for reward, they were under an obligation to use
reasonable care to see that she suffered no loss. It was held in
this case that the plaintiff was a licensee for reward and not a
tenant having regard to, among other factors, that the defendants
reserved the right to enter the room so that she did not have
exclusive possession of it .
The granting of exclusive possession is essential to the
creation of a lease. However, even if exclusive possession is
granted it does not automatically follow that the grantee is a
lessee or tenant. Grant of exclusive possession is necessary but
not sufficient.9 In certain exceptional situations an occupier of
land will have exclusive possession of the property but for special
reasons no lease will exist. In such cases, the grant of exclusive
possession is referable to other bona fide relationships between
the parties. Examples include situations where occupation is on
charity, friendship or family arrangements.10
5.2 Types of Tenancies
Tenancies may be categorised under the following heads:
5.2.1 Tenancy at Will
A tenancy at will arises where a tenant occupies land with the

consent of the landlord on the terms that either party may
determine the tenancy at any time. This kind of tenancy may be
created either expressly or by implication. Common examples
are where a tenant whose lease has expired holds over with the
landlord’s permission or where a person is allowed into
possession while the parties negotiate the terms of the lease.11
The landlord is entitled to compensation for the use and
occupation of land unless the parties agree that the tenancy
shall be rent free.12 The essence of the tenancy at will is that
either party can determine it at will, even if it is made
determinable at the will of the landlord only, for the law will
imply that it is to be determinable at the will of the tenant also.13
9
Supra note 3.
10
See Nip v. Zambia State Insurance Corporation (1993/1994) ZR, 144. The case is excerpted below under
the section dealing with case law.
11
12
Ibid.
13
Ibid.
If rent is later paid and accepted on some regular periodic basis

a tenancy at will is then converted into a periodic tenancy.
5.2.2 Tenancy at Sufferance
A tenancy at sufferance arises where a tenant holds over after

his lease has expired and remains in possession without the
landlord’s assent or dissent.14 The tenant is liable to pay
compensation for occupying and using the land.15 A tenant at
sufferance differs from a trespasser in that his original entry
was lawful and from a tenant at will in that his tenancy exists
without the landlord’s assent.16 A tenancy at sufferance will be
converted into a tenancy at will if the landlord subsequently
assents to the tenant’s occupation.17
5.2.3 Periodic Tenancy
Apart from express agreement, a periodic tenancy may arise

whenever a person goes into possession with the owner’s
consent and pays rent by reference to a definite period, e.g.,
weekly, monthly, quarterly, yearly.18 The lease can continue
indefinitely and the total period of the tenancy will not be known
in advance. However, the tenancy is not of uncertain duration.
There is merely succession of periodic tenancies, all of which
are of a term certain, i.e., one week, after one week or one
month, after one month and so on.19 The parties to the tenancy
may specifically agree to a period of notice determining the
tenancy but in absence of this, a monthly tenancy may be
determined by giving one month’s notice, a weekly tenancy by a
week’s notice and a yearly tenancy by giving six months notice.20
5.2.4 A Lease or Tenancy for a Fixed Period
This is a tenancy or lease of a fixed and certain duration e.g.,

three months, one year, ninety-nine years, etc.
14
Remon v. City of London Real Property Co. Limited [1921] 1 KB at p. 49 especially at p. 58.
15
Leigh v. Dickerson [1884] 15 QB 60. Mesne Profits are ‘damages awarded to a landlord for holding over a
tenancy by a tenant’ Per Muzyamba, JS, in G.F. Construction [1976] Limited v. Rudnap (Z) and Unitechan
Limited (1999) ZR 134, at p. 137.
16
17
Ibid., at p. 795.
18
Howarth, W., Land Law (3rd ed.). London: Sweet and Maxwell (1994), p. 32.
19
20
5.2.5 Tenancy by Estoppel
This arises where a landlord purports to grant a lease at a time

when he holds no estate in the land. If the landlord later acquires
the legal estate, he is estopped from denying the tenancy.21
5.3 Implied Obligations of Landlord and Tenant
The rights and duties of the landlord and tenant are normally
determined by the provisions of the lease itself. Where the lease
is silent certain covenants are implied by common law. Some of
the main implied covenants are discussed below.
5.3.1 Covenant for Quiet Enjoyment
The tenant has a right to be put into possession at the

commencement of the term and is entitled to damages if his
enjoyment is substantially interfered with by the acts of the
landlord. The covenant gives the tenant the right to be put into
possession of the whole of the premises demised, and to recover
damages from the landlord if the landlord, or any other person
to whom the covenant extends, physically interferes with the
tenant’s enjoyment of the land.22 The covenant is not one for
quiet enjoyment in the acoustic sense but that the tenant will be
free from disturbances by adverse claimants to the property.23
In Owen v. Gadd,24 the landlord was held to be in breach of
the covenant for quiet enjoyment where he caused loss of
business to the tenant by obscuring his shop with scaffolding. In
Kenny v. Preen,25 the landlord was liable under the covenant
for trying to drive out the tenant by persistent threats or violent
behaviour. In Perera v. Vandiyar,26 the landlord was liable under
the covenant for inflicting physical discomfort on the tenant by
cutting off his water, gas or electricity or depriving him of proper
washing facilities.
5.3.2 Not to Derogate from the Grant
A landlord may be restrained from acting to the detriment of the

tenant by the application of the principle that a grantor may not
21
Ibid.
22
See Owen v. Gadd [1965] 2 QB 99. See also Hudson v. Cripps [1896] 1 Ch. 265 at p. 268.
23
24
Supra note 22.
25
[1963] 1 QB 499.
26
[1953] 1 WLR 672.
derogate from his grant.27 The landlord must not frustrate the
use of the land for the purpose for which it was let.28 In order to
constitute a derogation from grant, there must be some act
rendering the premises substantially less fit for the purposes for
which they were let.29 This principle is illustrated by the case of
Aldin v. Latimer Clark, Muirhead and Co,30 where land was
leased to a timber merchant for use for his business; the landlord
was restrained from building on adjoining land so as to interrupt
the flow of air to sheds used for drying timber. Where land was
leased for the express purpose of storing explosives the lessor
will be restrained from using adjoining land so as to endanger
the statutory license for storage of explosives.31
5.3.3 Repair and Fitness for Habitation
There is no general implied undertaking at common law that the

landlord guarantees that the premises are fit for habitation or
for any particular purpose or even that they are not dangerous.32
Nevertheless, certain exceptions should be noted.
(a) Furnished dwellings – these must be reasonably fit for
human habitation when let.
(b) Blocks of flats – if a landlord retains control of the means
of access such as lifts and staircases, then he is under
obligation to keep them in state of repair.33
5.4 Implied Obligations and Rights of a Tenant
1. To pay rent.
2. To allow the landlord to view the premises if he is liable to
repair.
3. A tenant has the implied right to emblements (to reap the
crops he has sown). This applies to annual crops artificially
produced and actually growing at the determination of the
tenancy.34
4. Obligation not to commit waste.35
27
28
29
30
[1894] 2 CH 437.
31
Hammer v. Jumbi [Nigeria] Tin Areas Limited [ 1921] 1 Ch. 200.
32
Supra note 28.
33
See Liverpool, C.C. v. Irwin 1977 AC 239. The decision in this case was followed by the Supreme Court of
Zambia in Hickey Studios Ltd v. ZIMCO Properties Ltd (1988/89) ZR 181, excerpted under section dealing
with case law.
34
35
Ibid., at p. 363.
5.5 Landlord and Tenant’s Remedies for Breach of

Covenants
The landlord’s remedies for breach of covenant include the

remedy of distress, damages for breach of covenant and
forfeiture. The tenant’s remedies for breach of covenant are to
sue for damages, to sue for an injunction to stop a continuing or
threatened breach of a covenant, to sue for specific performance
of the landlord’s covenants, particularly the landlord’s covenant
to repair, to deduct the costs of carrying out the landlord’s repairs
from future payments of rent.36
5.6 Licences
The essential nature of a licence has already been pointed out

above under the introduction to this chapter. A licence was
classically defined in Thomas v. Sorrel,37 as a permission to
use land belonging to another which without such permission
would amount to trespass. The traditional view is that licences
are not proprietary in nature. In other words, a licence is not an
interest in land, but rather a right over land that is personal to the
parties that created it, i.e., the licensor and licensee.38 Licences
may be classified according to the functions they serve, the
circumstances in which they arise or the way in which they are
created. 39 Licences may be classified as bare licences,
contractual licences, a licence coupled with an interest and
Estoppel licences or licences protected by Estoppel. The
different categories of licences are discussed below.
5.6.1 Bare Licence
A bare licence is permission to enter upon and/or use the land,

given voluntarily by the land owner who receives nothing in
return. The giving of the licence is gratuitous in that it is not
supported by ‘consideration’ moving from the licensee.40 There
is no contract between the parties, merely a bare permission to
do that which otherwise would be a trespass. The licence is
revocable at any time provided reasonable notice is given and
36
37
[1673] Vaugh 300.
38
39
Ibid., at p. 199.
40
Ibid.
the licensee has no claim in damages or specific performance

should this happen.41
5.6.2 Contractual Licence
This arises where a licence is granted under the terms of a

contract and valuable consideration has been given, e.g.,
admission to a cinema or sports ground in return for payment.
In principle contractual licences are little different from bare
licences save only that contractual licences are granted to the
licensee in return for valuable consideration. Contractual licences
are governed by the ordinary rules of the law of contract. Since
these licences are founded in contract, both the licensor and
licensee may rely on the normal remedies for breach of contract
in the event of failure to carry out its terms.
Originally, at common law, a contractual licence could be
revoked at any time and the licensee’s only remedy was a claim
in damages if the revocation amounted to a breach of contract.42
In recent times the courts have been more willing to grant
equitable remedies. In Winter Garden Theatre London Limited
v. Millenium Productions Limited, 43 the House of Lords
expressed the view that an injunction may be used to preserve
the sanctity of a bargain. In Verrall v. Great Yarmouth BC,44
specific performance of a contract for the hire of a hall was
granted. In Hurst v. Picture Theatre Limited, 45 specific
performance of a contract for wrongful ejection from a cinema
after paying for a ticket was the plaintiff’s entitlement, as well
as having an action for assault.
Generally, a contractual licence cannot bind third parties. The
House of Lords held in King v. David Allen and Sons, Bill
Posting, 46 that a licence is merely a personal agreement
between the parties and creates no interest in land that might be
enforceable against a third person. In this case the House of
Lords held a licensor liable to a contractual licensee in damages
for breach of contractual licence to post adverts on a wall of a
building sold to a purchaser with knowledge of the contract who
refused to honour the contract.
41
Ibid.
42
43
[1947] 2 All ER 331.
44
[1980] 1 All ER 839.
45
[1915] 1 KB 1.
46
[1916] 2 AC 54.
In certain cases contractual licences have been enforced
against third parties. In Errington v. Errington,47 a licence to
occupy a house in consideration of paying mortgage instalments
was binding on the heir of the deceased licensor. In Binions v.
Evans,48 a widow of an ex-employee was permitted to live in a
cottage rent free for life on condition she maintained the property.
It was held that she had a contractual licence which bound a
purchaser who acquired the property with express notice of the
interest. Further, in Tanner v. Tanner,49 a mother was held to
have a contractual licence to allow her to live in the property
until her children were eighteen, the father having specifically
bought the house for the mother and children and the mother
having given up possession of a protected tenancy of a flat.
5.6.3 Licences Protected by Estoppel
The doctrine of Estoppel which is of general application at law

and in equity has played a significant part in the modern
development of the law of licences.50 The basic principle of the
doctrine is that a person who makes, by words or conduct, a
representation to another intending that other to act on it, and
the other does so to his detriment (e.g., by expenditure, or giving
up present accommodation), will not be allowed subsequently to
take a position inconsistent with the representation.51 If an owner
of land permits, promises or acquiesces to the use of land by
another he may be estopped from denying that person’s right to
use the land.52
In Willmott v. Barber,53 Fry J. laid down a set of criteria to
be satisfied before a proprietary estoppel may arise:
A man is not to be deprived of his legal rights unless

he has acted in such a way as would make it
fraudulent for him to set up those rights. What then,
are the elements or requisites necessary to
constitute fraud of that description? In the first
place, the plaintiff must have made a mistake as to
his legal rights. Secondly, the plaintiff must have
47
[1952] 1 All ER 149.
48
[1972] 2 All ER 70.
49
[1975] 3 All ER 776.
50
E.H. Burn, Burn and Maudsley’s Land Law: Cases and Materials (5th ed.). London: Butterworths (1986),
p. 510.
51
Ibid.
52
53
[1880] 15 Ch. 96.
expended some money or must have done some

act (not necessarily upon the defendant’s land) on
the faith of his mistaken belief. Thirdly, the
defendant, the possessor of the legal right, must
know of the existence of his own right which is
inconsistent with the right claimed by the plaintiff.
If he does not know of it, he is in the same position
as the plaintiff, and the doctrine of acquiescence
is founded upon conduct with knowledge of your
legal rights. Fourthly, the defendant, the possessor
of the legal right, must know of the plaintiff’s
mistaken belief of his rights. Lastly, the defendant,
the possessor of the legal right, must have
encouraged the plaintiff in his expenditure of money
or in the other acts which he has done, either
directly or by abstaining from asserting his legal
right. Where all these elements exist, there is fraud
of such a nature as will entitle the court to restrain
the possessor of the legal right from exercising it,
but, in my judgment, nothing short of this will do.54
These criteria have by no means been universally applied in the

cases. In the recent decisions the courts in England have
preferred a wider approach concentrating mainly on the
unconscionable behaviour of the promisor.55
5.6.4 Licences Coupled With A Grant Or Interest
This arises where a licence is granted ancillary to the granting

of some proprietary right in the land or chattel on the land. The
licence coupled with a grant enables a person to exercise some
other right connected with land, usually a profit a’ prendre.
The right to fish, hunt animals or to cut timber may all require an
attendant permission to enter the land. The licence will bind
third parties to the extent that they are bound by the interest
coupled with a licence.56 At common law such a licence is
irrevocable.57
54
Ibid., at p. 105.
55
Crabb v. Arun District Council [1975] 3 All ER 865.
56
James Jones and Son Limited v. Earl of Tankerville [1909] 2 Ch. 440.
57
Ibid.
5.7 Case Law
(a) Essentials of a Lease
BOBAT v. KAPINDULA (1974) ZR 235
[The facts of the case appear from the Judgment of Supreme Court
delivered by BARON, DCJ]
This is an appeal from a decision of the High Court dismissing

the appellant’s (the plaintiff’s) claim against the respondent (the
defendant) for possession of a house and mesne profits. It is
common cause that the defendant was at all material times in
occupation of the house, the issue being whether or not such
occupation was, as alleged by the defendant, by virtue of an
oral tenancy agreement. Paragraph 2 of the defence pleads
that on the 11th December, 1970, the parties agreed that the
defendant could occupy the premises for the purpose of selling
Chibuku beer and that he would carry out repairs and
redecorations to the dilapidated building, obtain a licence to sell
Chibuku, and pay rent of between K20 and K25 per month.
The learned Judge found that there was an agreement but
did not state what its terms were, and this is one of the grounds
of appeal; another is that the learned Judge erred in finding that
there was an agreement when the evidence clearly showed
that there was no completed agreement. It is convenient to deal
with these grounds together.
In Harvey v. Pratt,58 Lord Denning, MR said:
It is settled beyond question that, in order for there

to be a valid agreement for a lease, the essentials
are that there shall be determined not only the
parties, the property, the length of the term and the
rent, but also the date of its commencement.
The emphasis in that dictum on the date of commencement was

because that was the issue in the case, but the other essentials
are of course of equal importance. There can be no valid
agreement for a lease or oral tenancy agreement unless the
alleged agreement is sufficiently certain for a court to be able to
order specific performance.
58
[1965] 2 All ER 786.
In the present case there are three areas of uncertainty: the

rent, the length of the term and the date of its commencement.
Indeed even the identity of the intending tenant is unclear; the
defendant named in the action is the brother of the man who
alleges to have entered into an agreement with the plaintiff and
to have repaired the house, who obtained the licence, who carried
on the business and who gave evidence in the case; all this was,
he said, done as his brother’s agent, and since the action was
brought against the brother the plaintiff must be regarded as
having accepted this position.
(b) Distinction Between a Lease and a Licence
In Chilufya v. City Council of Kitwe,59 the High Court (Mallon, Ag. J),
outlined the distinction between a lease and a licence. His Lordship also
pointed out the essential nature of a lease and licence. His Lordship
summarised the distinction between a lease and a licence to be thus:
(a) It is essential for the establishment of the relationship of
landlord and tenant that there should be a demise, except
where the relationship is created by statute.
(b) A demise or lease is a grant of the right to the exclusive
possession of land for a determinate term less than that
which the grantor has himself in the land.
(c) An exclusive right to do something on a property (as opposed
to exclusive possession thereof) is merely a licence.
(d) The effect of a licence is to give the licensee an authority to
use the premises , without which he would be treated as a
trespasser.
(e) A licence may be either gratuitous or for value. If the latter,
the consideration may be given either once for all or by
periodic payment.
The case is excerpted below.
MALLON, Ag. J: By this originating summons the plaintiff,

Adamson Chilufya, seeks a declaration against the defendants,
the City Council of Kitwe, that a resolution of the Health
Amenities and Social Services Committee of the defendant
Council, passed on the 10th January, 1967, was ultra vires the
powers of the defendant council and for the declaration that the
removal from Chimwemwe Market, Kitwe, of the plaintiff’s
59
(1967) ZR 115.
shop by the defendant Council in pursuance of the said resolution
was unlawful and unconstitutional ….
I will now consider the legal position of the plantiff in relation
to defendant. In paragraph 7(d) and (e) of the Mayor’s affidavit,
the plaintiff’s right to trade is loosely described as ‘a daily tenancy
or licence’ and it is important first of all to decide, in law, which
term is correct. It will be noted that by-law 5 of the Kitwe
Market By-laws refers to ‘stallages, rents or tolls and fees’ and
by-law 13 refers to a person ‘renting, holding or occupying a
stall’. Although it is not in evidence I was informed by counsel
for the defendant that the usual practice is for the defendant to
write to an applicant a letter granting him authority to occupy a
stall on a day-to-day basis and drawing his attention to the by-
laws and charges of 1s. per day. The legal distinction between a
lease and a licence is fully discussed in Woodfall on Landlord
and Tenant, 25th Ed., at pages 2 and 8 from which it is clear
that it is essential for the establishment of the relationship of
landlord and tenant that there should be a demise, except where
the relationship is created by statute. A demise or lease is the
grant of a right to the exclusive possession of land for a
determinate term less than that which the grantor has himself in
the land and a lease is therefore a species of conveyance. At
page 9 the learned author points out that ‘the question is in all
cases whether the arrangement made between the parties
confers upon the tenant a right to the exclusive possession of
any property. It is not sufficient that the agreement confers a
right, even an exclusive right, of doing something on the premises,
such as fixing and exhibiting thereon an advertisement; the grant
of such a right is the grant only of a licence.’ The effect of a
licence is discussed at paragraph 17 on para 11, and it is clear
that its effect is to give the licensee an authority to use the
premises, which authority prevents his being treated as a
trespasser. Such a licence may be a gratuitous licence or a licence
for value. In the latter case the consideration may be given
either once for all or may take the form of a periodic payment,
as in this case. The nature of a licence was also fully considered
by the Court of Appeal in England in the case of Frank Warr &
Co. Ltd v. London County Council,60 from which it is clear
that the fact that a licence is granted for the purpose of making
a profit on land does not imply any grant of any estate or interest
in the land, and I would refer, in particular, to the judgment of
60
[1904] 1 KB 713.
Romer, LJ, at page 720. The law with regard to the revocation
of a licence is set out in paragraph 18, on page 11, of Woodfall
and it is clear that a gratuitous licence is revocable by notice,
but time must be given to the licensee to remove from the
premises, and even where a licence to occupy is revocable at
will, still a reasonable time must also be given to the licensee in
which to quit.
In the light of the above statement of the law, I have come to
the conclusion that the true nature of the relationship between
the plaintiff and the defendant in this case was that of licensor
and licensee. There is not in existence any writing which could
be termed a lease. Without the defendant’s licence to trade in
the market the plaintiff would be a trespasser and the daily fee
of 1s. which he paid in respect of his stall was more in the
nature of a licence fee than a payment of rent. I do not consider
that the fact that the defendant allowed the plaintiff to erect a
wooden stall in the market altered this situation.
I must now consider what powers the defendant had, under
the provisions of section 3 (a) of the Markets Ordinance or
otherwise, to grant a licence of the kind in question and to
terminate it, and the decision on these points turns upon the
interpretation to be placed upon the words “control and
management” which appear in the said section. These words
have been the subject of many judicial decisions in England,
mainly in connection with their interpretation in the context of
different English statutes, few of which are of real assistance in
the present case. It is clear that at common law a licensor can
terminate a licence at any time (see Wood v. Leadbetter), but
such a termination can amount to a breach of contract resulting
in damages (see Kerrison v. Smith) . . .
His Lordship went on to hold and declare that the resolution of the Health
Amenities and Social Services Committee of the defendant City Council
which was adopted as a resolution of the defendant itself was ultra
vires its powers and that the removal from Chimwemwe Market, Kitwe,
of the plaintiff’s wooden stall by the defendant in pursuance of the said
resolution was unlawful and unconstitutional.
(c) Lease or Licence – The test whether an occupancy of

residential accommodation was a tenancy or a licence is whether
on the true construction of the agreement the occupier had been
granted exclusive possession of the accommodation for a fixed
period or periodic term at a stated rent, unless special
circumstances existed which negatived the presumption of a
tenancy. It is no longer the intention of the parties that is essential,
but the courts construction of the agreement and in examining
such agreement the presence or absence of exclusive possession
is of critical importance.
Street v. Mountford [1985] 2 All ER 289
The landlord granted the appellant the right to occupy a furnished

room under a written agreement which stated that the appellant
had the right to occupy the room ‘at a licence fee of £37 per
week’, that ‘this personal licence is not assignable’, that the
‘licence may be terminated by 14 days written notice’ and that
the appellant understood and accepted that ‘a licence in the
above form does not and is not intended to give me a tenancy
protected under the Rent Acts’. The appellant had exclusive
possession of the room. Some months after signing the
agreement the appellant applied to have a fair rent registered in
respect of the room. The landlord then applied to the county
court for a declaration that the appellant occupied the room
under a licence and not a tenancy. The county court judge held
that the appellant was a tenant entitled to the protection of the
Rent Acts, but on the landlord’s appeal the Court of Appeal held
that the occupier was a mere licensee since, notwithstanding
the fact of exclusive possession, the agreement bore all the
hallmarks of a licence and the parties had in fact only intended
to create a licence. The appellant appealed to the House of
Lords.
LORD TEMPLEMAN: My Lords, by an agreement dated 7 March

1983 the respondent Mr Street granted the appellant Mrs
Mountford the right to occupy the furnished rooms no’s 5 and 6
at 5 St Clements Gardens, Boscombe from 7 March 1983 for
£37 per week, subject to termination by 14 days’ written notice
and subject to the conditions set forth in the agreement. The
question raised by this appeal is whether the agreement created
a tenancy or a licence.
A tenancy is a term of years absolute. This expression, by s.
205(1)(xxvii) of the Law of Property Act 1925, reproducing the
common law, includes a term from week to week in possession
at a rent and liable to determination by notice or re-entry.
Originally a term of years was not an estate in land, the lessee

having merely a personal action against his lessor. But a legal
estate in leaseholds was created by the Statute of Gloucester (6
Edw 1(1278)) and the Act 21 Hen 8 c 15 (Recoveries (1529)).
Now by s 1 of the Law of Property Act 1925 a term of years
absolute is an estate in land capable of subsisting as a legal
estate. In the present case, if the agreement dated 7 March
1983 created a tenancy, Mrs Mountford having entered into
possession and made weekly payments acquired a legal estate
in land. If the agreement is a tenancy, the occupation of Mrs
Mountford is protected by the Rent Acts.
A licence in connection with land while entitling the licensee
to use the land for the purposes authorised by the licence does
not create an estate in the land. If the agreement dated 7th
March 1983 created a licence for Mrs Mountford to occupy the
premises, she did not acquire any estate in the land. If the
agreement is a licence then Mrs Mountford’s right of occupation
is not protected by the Rent Acts. Hence the practical importance
of distinguishing between a tenancy and a licence.
In the course of argument, nearly every clause of the
agreement dated 7 th March 1983 was relied on by Mrs
Mountford as indicating a lease and by Mr Street as indicating a
licence. The agreement, in full, was in these terms:
I Mrs Wendy Mountford agree to take from the

owner Roger Street the single furnished room
number 5 & 6 at 5 St Clements Gardens,
Boscombe, Bournemouth, commencing 7th March
1983 at a licence fee of £37 per week. I
understand that the right to occupy the above room
is conditional on the strict observance of the
following rules:-
1. No paraffin stoves, or other than the supplied
form of heating, is allowed in the room.
2. No one but the above-named person may
occupy or sleep in the room without prior
permission, and this personal licence is not
assignable.
3. The owner (or his agent) has the right at all
times to enter the room to inspect its condition,
read and collect money from meters, carry
out maintenance works, install or replace
furniture or for any other reasonable purpose.
4. All rooms must be kept in a clean and tidy
condition.
5. All damages and breakages must be paid for
or replaced at once. An initial deposit
equivalent to 2 weeks licence fee will be
refunded on termination of the licence subject
to deduction for all damages or other
breakages or arrears or licence fee, or
retention towards the cost of any necessary
possession proceedings.
6. No nuisance or annoyance to be caused to
the other occupiers. In particular, all music
played after midnight to be kept low so as not
to disturb occupiers of other rooms.
7. No children or pets allowed under any
circumstances whatsoever.
8. Prompt payment of the licence fee must be
made every Monday in advance without fail.
9. If the licence fee or any part of it shall be
seven days in arrear or if the occupier shall
be in breach of any of the other terms of this
agreement or if (except by arrangement) the
room is left vacant or unoccupied, the owner
may re-enter the room and this licence shall
then immediately be terminated (without
prejudice to all other rights and remedies of
the owner).
10. This licence may be terminated by 14 days
written notice given to the occupier at any
time by the owner or his agent, or by the same
notice by the occupier to the owner of his
agent.
Occupier’s signature
Owner/agent’s signature
Date 7th March 1983
I understand and accept that a licence in the above
form does not and is not intended to give me a
tenancy protected under the Rent Acts.
Occupier’s signature.
On 12th August 1983, on Mrs Mountford’s application, a fair

rent was registered. Mr Street then made application under
s. 51A of the County Courts Act 1959 for a declaration that

Mrs Mountford’s occupancy was a licence and not a tenancy.
The recorder in the county court held that Mrs Mountford was
a tenant entitled to the protection of the Rent Acts and made a
declaration accordingly. The Court of Appeal held that Mrs
Mountford was a licensee not entitled to the protection of the
Rent Acts. Mrs Mountford appeals.
Counsel for Mrs Mountford seeks to reaffirm and re-establish
the traditional view that an occupier of land for a term at a rent
is a tenant providing the occupier is granted exclusive possession.
It is conceded on behalf of Mr Street that the agreement dated
7 March 1983 granted exclusive possession to Mrs Mountford.
The traditional view that the grant of exclusive possession for a
term at a rent creates a tenancy is consistent with the elevation
of a tenancy into an estate in land. The tenant possessing
exclusive possession is able to exercise the rights of an owner
of land, which is in the real sense his land albeit temporarily and
subject to certain restrictions. A tenant armed with exclusive
possession can keep out strangers and keep out the landlord
unless the landlord is exercising limited rights reserved to him
by the tenancy agreement to enter and view and repair. A
licensee lacking exclusive possession can in no sense call the
land his own and cannot be said to own any estate in the land.
The licence does not create an estate in the land to which it
relates but only makes an act lawful which would otherwise be
unlawful.
Counsel for Mr Street relies on recent authorities which, he
submits, demonstrate that an occupier granted exclusive
possession for a term at a rent may nevertheless be a licensee
if, in the words of Slade, LJ in the present case, ‘there is
manifested the clear intentions of both parties that the rights
granted are to be merely those of a personal right of occupation
and not those of a tenant’. In the present case, it is submitted,
the provisions of the agreement dated 7th March 1983 and in
particular cl. 2, 4, 7 and 9 and the express declaration at the foot
of the agreement manifest the clear intention of both parties
that the rights granted are to be those of a personal nature and
not those of a tenant.
My Lords, there is no doubt that the traditional distinction
between a tenancy and a licence of land lay in the grant of land
for a term at a rent with exclusive possession. In some cases it
was not clear at first sight whether exclusive possession was in
fact granted. For example, an owner of land could grant a
licence to cut and remove standing timber. Alternatively, the
owner could grant a tenancy of the land with the right to cut and
remove standing timber during the term of the tenancy. The
grant of rights relating to standing timber therefore required
careful consideration in order to decide whether the grant
conferred exclusive possession of the land for a term at a rent
and was therefore a tenancy or whether it merely conferred a
bare licence to remove the timber.
In Glenwood Lumber Co. Ltd v. Phillips [1904] AC 405,
[1904–7] All ER Rep. 203 the Crown in exercise of statutory
powers ‘licensed’ the respondents to hold an area of land for
the purposes of cutting and removing timber for the term of 21
years at an annual rent. Delivering the advice of the Judicial
Committee of the Privy Council, Lord Davey said ([1904] AC
405 at 408–409, [1904–7] All ER Rep. 203 at 205):
The appellants contended that this instrument

conferred only a licence to cut timber and carry it
away, and did not give the respondent any right of
occupation or interest in the land itself. Having
regard to the provisions of the Act under the powers
of which it was executed, and to the language of
the document itself, their 292 Lordships cannot
adopt this view of the construction or effect of it.
In the so-called licence itself it is called indifferently
as a licence and a demise, but in the Act it is spoken
of as a lease, and the holder of it is described as
the lessee. It is not, however, a question of words
but of substance. If the effect of the instrument is
to give the holder an exclusive right of occupation
of the land though subject to certain reservations
or to a restriction of the purposes for which it may
be used, it is in law a demise of the land itself. By
[the Act] it is enacted that the lease shall vest in
the lessee the right to take and keep exclusive
possession of the lands described therein subject
to the conditions in the Act provided or referred to,
and the lessee is empowered (amongst other
things) to bring any actions or suits against any
party unlawfully in possession of any land so leased,
and to prosecute all trespassers thereon. The
operative part and habendum in the licence is
framed in apt language to carry out the intention

so expressed in the Act. And their Lordships have
no doubt that the effect of the so-called licence
was to confer a title to the land itself on the
respondent.
That was a case in which the court, after careful consideration

of the purposes of the grant, the terms of the grant and the
surrounding circumstances, came to the conclusion that the grant
conferred exclusive possession and was therefore a tenancy.
A contrary conclusion was reached in Taylor v. Caldwell
(1863) 3 B & S 826, [1861–73] All ER Rep. 24, in which the
defendant agreed to let the plaintiff have the use of the Surrey
Gardens and Music Hall on four specified days giving a series
of four concerts and day and night fetes at the gardens and hall
on those days, and the plaintiff agreed to take the gardens and
the hall and to pay £100 for each day. Blackburn, J said (3 B &
S 826 at 832, [1861–73] All ER Rep. 24 at 26):
The parties inaccurately call this a ‘letting,’ and

the money to be paid a ‘rent’; but the whole
agreement is such as to shew that the defendants
were to retain the possession of the Hall and
Gardens so that there was to be no demise of them,
and that the contract was merely to give the
plaintiffs the use of them on those days.
That was a case where the court, after considering the purpose
of the grant, the terms of the grant and the surrounding
circumstances, came to the conclusion that the grantee was not
entitled to exclusive possession but only to use the land for limited
purposes and was therefore a licensee.
In the case of residential accommodation there is no difficulty
in deciding whether the grant confers exclusive possession. An
occupier of residential accommodation at a rent for a term is
either a lodger or a tenant. The occupier is a lodger if the
landlord provides attendance or services which require the
landlord or his servants to exercise unrestricted access to and
use of the premises. A lodger is entitled to live in the premises
but cannot call the place his own. In Allan v. Liverpool
Overseers (1874) LR 9 QB 180 at 191–192 Blackburn, J said:
A lodger in a house, although he has the exclusive
use of rooms in the house, in the sense that nobody
else is to be there, and though his goods are stowed
there, yet he is not in exclusive occupation in that
sense, because the landlord is there for the purpose
of being able, as landlords commonly do in the case
of lodgings, to have his own servants to look after
the house and the furniture, and has retained to
himself the occupation, though he has agreed to
give the exclusive enjoyment of the occupation to
the lodger.
If on the other hand residential accommodation is granted for a

term at a rent with exclusive possession, the landlord providing
neither attendance nor services, the grant is a tenancy; any
express reservation to the landlord of limited rights to enter and
view the state of the premises and to repair and maintain the
premises only serves to emphasise the fact that the grantee is
entitled to exclusive possession and is a tenant. In the present
case it is conceded that Mrs Mountford is entitled to exclusive
possession and is not a lodger. Mr Street provided neither
attendance nor services and only reserved the limited rights of
inspection and maintenance and the like set forth in the
agreement. On the traditional view of the matter, Mrs Mountford
not being a lodger must be a tenant.
There can be no tenancy unless the occupier enjoys exclusive
possession; but an occupier who enjoys exclusive possession is
not necessarily a tenant. He may be owner in fee simple, a
trespasser, a mortgagee in possession, an object of charity or a
service occupier. To constitute a tenancy the occupier must be
granted exclusive possession for a fixed or periodic term certain
in consideration of a premium or periodical payments. The grant
may be express, or may be inferred where the owner accepts
weekly or other periodic payments from the occupier.
Occupation by service occupier may be eliminated. A service
occupier is a servant who occupies his master’s premises in
order to perform his duties as a servant. In those circumstances
the possession and occupation of the servant is treated as the
possession and occupation of the master and the relationship of
landlord and tenant is not created: see Mayhew v. Suttle (1854)
4 E & B 347, 119 ER 137. The test is whether the servant
requires the premises he occupies in order to better perform his
duties as a servant:
Where the occupation is necessary for the

performance of services, and the occupier is
required to reside in the house in order to perform
those services, the occupation being strictly
ancillary to the performance of the duties which
the occupier has to perform, the occupation is that
of a servant.
(See per Mellor, J in Smith v. Seghill Overseers (1875) LR 10

QB 422 at 428; cf [1874–80] All ER Rep. 373 at 375.)
The cases on which counsel for Mr Street relies begin with
Booker v. Palmer [1942] 2 All ER 674. The owner of a cottage
agreed to allow a friend to install an evacuee in the cottage rent
free for the duration of the war. The Court of Appeal held that
there was no intention on the part of the owner to enter into
legal relationships with the evacuee. Lord Greene, MR said (at
677):
To suggest there is an intention there to create a

relationship of landlord and tenant appears to me
to be quite impossible. There is one golden rule
which is of very general application, namely, that
the law does not impute intention to enter into legal
relationships where the circumstances and the
conduct of the parties negative any intention of
the kind. It seems to me that this is a clear example
of the application of that rule.
The observations of Lord Greene, MR were not directed to the

distinction between a contractual tenancy and a contractual
licence. The conduct of the parties (not their professed intentions)
indicated that they did not intend to contract at all.
In the present case the agreement dated 7 March 1983
professed an intention by both parties to create a licence and
their belief that they had in fact created a licence. It was
submitted on behalf of Mr Street that the court cannot in these
circumstances decide that the agreement created a tenancy
without interfering with the freedom of contract enjoyed by both
parties. My Lords, Mr Street enjoyed freedom to offer Mrs
Mountford the right to occupy the rooms comprised in the
agreement on such lawful terms as Mr Street pleased. Mrs
Mountford enjoyed freedom to negotiate with Mr Street to obtain
different terms. Both parties enjoyed freedom to contract or
not to contract and both parties exercised that freedom by
contracting on the terms set forth in the written agreement and
on no other terms. But the consequences in law of the
agreement, once concluded, can only be determined by
consideration of the effect of the agreement. If the agreement
satisfied all the requirements of a tenancy, then the agreement
produced a tenancy and the parties cannot alter the effect of
the agreement by insisting that they only created a licence. The
manufacture of a five-pronged implement for manual digging
results in a fork even if the manufacturer, unfamiliar with the
English language, insists that he intended to make and has made
a spade.
It was also submitted that, in deciding whether the agreement
created a tenancy or a licence, the court should ignore the Rent
Acts. If Mr Street has succeeded, where owners have failed
these past 70 years, in driving a coach and horses through the
Rent Acts, he must be left to enjoy the benefit of his ingenuity
unless and until Parliament intervenes. I accept that the Rent
Acts are irrelevant to the problem of determining the legal effect
of the rights granted by the agreement. Like the professed
intention of the parties, the Rent Acts cannot alter the effect of
the agreement.
In Marcroft Wagons Ltd v. Smith [1951] 2 All ER 271, [1951]
2 KB 496, the daughter of a deceased tenant who lived with her
mother claimed to be a statutory tenant by succession and the
landlords asserted that the daughter had no rights under the
Rent Acts and was a trespasser. The landlords expressly refused
to accept the daughter’s claims but accepted rent from her while
they were considering the position. If the landlords had decided
not to apply to the court for possession but to accept the daughter
as a tenant, the moneys paid by the daughter would have been
treated as rent. If the landlords decided, as they did decide, to
apply for possession and to prove, as they did prove, that the
daughter was not a statutory tenant, the moneys paid by the
daughter were treated as mesne profits. The Court of Appeal
held with some hesitation that the landlords never accepted the
daughter as tenant and never intended to contract with her
although the landlords delayed for some six months before
applying to the court for possession. Roxburgh, J said ([1951] 2
All ER 271 at 277, [1951] 2 KB 496 at 507):
Generally speaking, when a person, having a

sufficient estate in land, lets another into exclusive
possession, a tenancy results, and there is no
question of a licence. But the inference of a
tenancy is not necessarily to be drawn where a
person succeeds on a death to occupation of rent-
controlled premises and a landlord accepts some
rent while he or the occupant, or both of them, is
or are considering his or their position. If this is all
that happened in this case, then no tenancy would
result.
In that case, as in Booker v. Palmer, the court deduced from

the conduct of the parties that they did not intend to contract at
all.
Errington v. Errington [1952] 1 All ER 149, [1952] 1 KB
290 concerned a contract by a father to allow his son to buy the
father’s house on payment of the instalments of the father’s
building society loan. Denning, LJ referred (see [1952] 1 All ER
149 at 154, [1952] 1 KB 290 at 297) to the judgment of Lord
Greene MR in Booker v. Palmer where, however, the
circumstances and the conduct of the parties negatived any
intention to enter into legal relationships. Denning, LJ continued
([1952] 1 All ER 149 at 154–155, [1952] 1 KB 290 at 297–298):
We have had many instances lately of occupiers

in exclusive possession who have been held to be
not tenants, but only licensees—when a
requisitioning authority allowed people into
possession at a weekly rent … when a landlord
told a tenant on his retirement that he could live in
a cottage rent free for the rest of his days … when
a landlord, on the death of the widow of a statutory
tenant, allowed her daughter to remain in
possession, paying rent for six months: Marcroft
Wagons Ltd v. Smith; when the owner of a shop
allowed the manager to live in a flat above the
shop, but did not require him to do so, and the value
of the flat was taken into account at £1 a week in
fixing his wages … In each of those cases the
occupier was held to be a licensee and not a tenant
… The result of all these cases is that, although a
person who is let into exclusive possession is, prima
facie, to be considered a tenant, nevertheless he
will not be held to be so if the circumstances
negative any intention to create a tenancy. Words
alone may not suffice. Parties cannot turn a tenancy
into a licence merely by calling it one. But if the
circumstances and the conduct of the parties show
that all that was intended was that the occupier
should be granted a personal privilege with no
interest in the land, he will be held only to be a
licensee.
In Errington v. Errington and in the cases cited by Denning,

LJ there were exceptional circumstances which negatived the
prima facie intention to create a tenancy, notwithstanding that
the occupier enjoyed exclusive occupation. The intention to
create a tenancy was negatived if the parties did not intend to
enter into legal relationships at all, or where the relationship
between the parties was that of vendor and purchaser, master
and service occupier, or where the owner, a requisitioning
authority, had no power to grant a tenancy. These exceptional
circumstances are not to be found in the present case, where
there has been the lawful, independent and voluntary grant of
exclusive possession for a term at a rent.
If the observations of Denning, LJ are applied to the facts of
the present case it may fairly be said that the circumstances
negative any intention to create a mere licence. Words alone
do not suffice. Parties cannot turn a tenancy into a licence
merely by calling it one. The circumstances and the conduct of
the parties show that what was intended was that the occupier
should be granted exclusive possession at a rent for a term with
a corresponding interest in the land which created a tenancy.
In Cobb v. Lane [1952] 1 All ER 1199 an owner allowed
her brother to occupy a house rent free. The county court
judge, who was upheld by the Court of Appeal, held that there
was no intention to create any legal relationship and that a tenancy
at will was not to be implied. This is another example of conduct
which negatives any intention of entering into a contract, and
does not assist in distinguishing a contractual tenancy from a
contractual licence.
In Facchini v. Bryson [1952] 1 TLR 1386 an employer and
his assistant entered into an agreement which, inter alia, allowed
the assistant to occupy a house for a weekly payment on terms

which conferred exclusive possession. The assistant did not
occupy the house for the better performance of his duty and
was not therefore a service occupier. The agreement stipulated
that ‘nothing in this agreement shall be construed to create a
tenancy between the employer and the assistant’. Somervell,
LJ said (at 1389):
If, looking at the operative clauses in the agreement,

one comes to the conclusion that the rights of the
occupier, to use a neutral word, are those of a
lessee, the parties cannot turn it into a licence by
saying at the end ‘this is deemed to be a licence’;
nor can they, if the operative paragraphs show that
it is merely a licence, say that it should be deemed
to be a lease.
Denning, LJ referred to several cases including Errington v.

Errington and Cobb v. Lane and said (at 1389–1390):
In all the cases where an occupier has been held

to be a licensee there has been something in the
circumstances, such as a family arrangement, an
act of friendship or generosity, or such like, to
negative any intention to create a tenancy … In
the present case, however, there are no special
circumstances. It is a simple case where the
employer let a man into occupation of a house in
consequence of his employment at a weekly sum
payable by him. The occupation has all the features
of a service tenancy, and the parties cannot by the
mere words of their contract turn it into something
else. Their relationship is determined by the law
and not by the label which they choose to put on it.
The decision, which was thereafter binding on the Court of Appeal

and on all lower courts, referred to the special circumstances
which are capable of negativing an intention to create a tenancy
and reaffirmed the principle that the professed intentions of the
parties are irrelevant. The decision also indicated that in a simple
case a grant of exclusive possession of residential
accommodation for a weekly sum creates a tenancy.
In Murray Bull & Co Ltd v. Murray [1952] 2 All ER 1079,
[1953] 1 QB 211, a contractual tenant held over, paying rent
quarterly. McNair, J found that—
both parties intended that the relationship should

be that of licensee and no more … The primary
consideration on both sides was that the defendant,
as occupant of that flat, should not be a controlled
tenant. (See [1952] 2 All ER 1079 at 1082, [1953]
1 QB 211 at 217.)
In my opinion this case was wrongly decided. McNair, J, citing

the observations of Denning, LJ in Errington v. Errington [1952]
1 All ER 149 at 154–155, [1952] 1 KB 290 at 297 and Marcroft
Wagons Ltd v. Smith, failed to distinguish between, first, conduct
which negatives an intention to create legal relationships, second,
special circumstances which prevent exclusive occupation from
creating a tenancy and, third, the professed intention of the parties.
In Murray Bull & Co Ltd v. Murray the conduct of the parties
showed an intention to contract and there were no relevant
special circumstances. The tenant holding over continued by
agreement to enjoy exclusive possession and to pay a rent for a
term certain. In those circumstances he continued to be a tenant
notwithstanding the professed intention of the parties to create
a licence and their desire to avoid a controlled tenancy.
In Addiscombe Garden Estates Ltd v. Crabbe [1957] 3 All
ER 563, [1958] 1 QB 513 the Court of Appeal considered an
agreement relating to a tennis club carried on in the grounds of
a hotel. The agreement was—
described by the parties as a licence … the

draftsman has studiously and successfully avoided
the use either of the word ‘landlord’ or the word
‘tenant’ throughout the document … ’ (See [1957]
3 All ER 563 at 567, [1958] 1 QB 513 at 522 per
Jenkins, LJ.)
On analysis of the whole of the agreement the Court of Appeal

came to the conclusion that the agreement conferred exclusive
possession and thus created a tenancy. Jenkins, LJ said ([1957]
3 All ER 563 at 565, [1958] 1 QB 513 at 522):
The whole of the document must be looked at;

and if, after it has been examined, the right
conclusion appears to be that, whatever label may
have been attached to it, it in fact conferred and
imposed on the grantee in substance the rights and
obligations of a tenant, and on the grantor in
substance the rights and obligations of a landlord,
then it must be given the appropriate effect, that is
to say, it must be treated as a tenancy agreement
as distinct from a mere licence.
In the agreement in the Addiscombe case it was by no means

clear until the whole of the document had been narrowly
examined that exclusive possession was granted by the
agreement. In the present case it is clear that exclusive
possession was granted and so much is conceded. In these
circumstances it is unnecessary to analyse minutely the detailed
rights and obligations contained in the agreement.
In the Addiscombe case [1957] 3 All ER 563 at 571, [1958]
1 QB 513 at 528 Jenkins, LJ referred to the observations of
Denning, LJ in Errington v. Errington [1952] 1 All ER 149 at
154, [1952] 1 KB 290 at 297 to the effect that ‘The test of
exclusive possession is by no means decisive’. Jenkins, LJ
continued:
I think that wide statement must be treated as

qualified by his observations in Facchini v. Bryson
((1952) 1 TLR 1386 at 1389); and it seems to me
that, save in exceptional cases of the kind mentioned
by DENNING, LJ, in that case, the law remains
that the fact of exclusive possession, if not decisive
against the view that there is a mere licence, as
distinct from a tenancy, is at all events a
consideration of the first importance.
Exclusive possession is of first importance in considering whether

an occupier is a tenant; exclusive possession is not decisive
because an occupier who enjoys exclusive possession is not
necessarily a tenant. The occupier may be a lodger or service
occupier or fall within the other exceptional categories mentioned
by Denning, LJ in Errington v. Errington.
In Isaac v. Hotel de Paris Ltd [1960] 1 All ER 348, [1960]
1 WLR 239 an employee who managed a night bar in a hotel for
his employer company which held a lease of the hotel negotiated
‘subject to contract’ to complete the purchase of shares in the
company and to be allowed to run the nightclub for his own
benefit if he paid the head rent payable by the company for the
hotel. In the expectation that the negotiations ‘subject to contract’
would ripen into a binding agreement, the employee was allowed
to run the nightclub and he paid the company’s rent. When
negotiations broke down the employee claimed unsuccessfully
to be a tenant of the hotel company. The circumstances in
which the employee was allowed to occupy the premises showed
that the hotel company never intended to accept him as a tenant
and that he was fully aware of that fact. This was a case,
consistent with the authorities cited by Lord Denning in giving
the advice of the Judicial Committee of the Privy Council, in
which the parties did not intend to enter into contractual
relationships unless and until the negotiations ‘subject to contract’
were replaced by a binding contract.
In Abbeyfield (Harpenden) Society Ltd v. Woods [1968] 1
All ER 352, [1968] 1 WLR 374 the occupier of a room in an old
people’s home was held to be a licensee and not a tenant. Lord
Denning, MR said ([1968] 1 All ER 352 at 353, [1968] 1 WLR
374 at 376):
The modern cases show that a man may be a

licensee even though he has exclusive possession,
even though the word ‘rent’ is used, and even
though the word ‘tenancy’ is used. The court must
look at the agreement as a whole and see whether
a tenancy really was intended. In this case there
is, besides the one room, the provision of services,
meals, a resident housekeeper, and such. The
whole arrangement was so personal in nature that
the proper inference is … that he was a licensee
…
As I understand the decision in the Abbeyfield case the court

came to the conclusion that the occupier was a lodger and was
therefore a licensee not a tenant.
In Shell-Mex & BP Ltd v. Manchester Garages Ltd [1971]
1 All ER 841, [1971] 1 WLR 612 the Court of Appeal, after
carefully examining an agreement whereby the defendant was

allowed to use a petrol company’s filling station for the purposes
of selling petrol, came to the conclusion that the agreement did
not grant exclusive possession to the defendant, who was
therefore a licensee. Lord Denning, MR in considering whether
the transaction was a licence or a tenancy said ([1971] 1 All ER
841 at 843, [1971] 1 WLR 612 at 615):
Broadly speaking, we have to see whether it is a

personal privilege given to a person, in which case
it is a licence, or whether it grants an interest in
land, in which case it is a tenancy. At one time it
used to be thought that exclusive possession was
a decisive factor. But that is not so. It depends on
broader considerations altogether. Primarily on
whether it is personal in its nature or not: see
Errington v. Errington and Woods.
In my opinion the agreement was only ‘personal in its nature’

and created ‘a personal privilege’ if the agreement did not confer
the right to exclusive possession of the filling station. No other
test for distinguishing between a contractual tenancy and a
contractual licence appears to be understandable or workable.
Heslop v. Burns [1974] 3 All ER 406, [1974] 1 WLR 1241
was another case in which the owner of a cottage allowed a
family to live in the cottage rent free and it was held that no
tenancy at will had been created on the grounds that the parties
did not intend any legal relationship. Scarman, LJ cited with
approval the statement by Denning, LJ in Facchini v. Bryson
[1952] 1 TLR 1386 at 1389:
In all the cases where an occupier has been held to

be a licensee there has been something in the
circumstances, such as a family arrangement, an act
of friendship or generosity, or such like, to negative
any intention to create a tenancy. (See [1974] 3 All
ER 406 at 415, [1976] 1 WLR 1241 at 1252.)
In Marchant v. Charters [1977] 3 All ER 918, [1977] 1 WLR

1181 a bed-sitting room was occupied on terms that the landlord
cleaned the rooms daily and provided clean linen each week. It
was held by the Court of Appeal that the occupier was a licensee
and not a tenant. The decision in the case is sustainable on the
grounds that the occupier was a lodger and did not enjoy
exclusive possession. But Lord Denning, MR said ([1977] 3 All
ER 918 at 922, [1977] 1 WLR 1181 at 1185):
What is the test to see whether the occupier of

one room in a house is a tenant or a licensee? It
does not depend on whether he or she has exclusive
possession or not. It does not depend on whether
the room is furnished or not. It does not depend
on whether the occupation is permanent or
temporary. It does not depend on the label which
the parties put on it. All these are factors which
may influence the decision but none of them is
conclusive. All the circumstances have to be
worked out. Eventually the answer depends on
the nature and quality of the occupancy. Was it
intended that the occupier should have a stake in
the room or did he only have permission for himself
personally to occupy the room, whether under a
contract or not in which case he is a licensee?
But in my opinion, in order to ascertain the nature and quality of

the occupancy and to see whether the occupier has or has not a
stake in the room or only permission for himself personally to
occupy, the court must decide whether on its true construction
the agreement confers on the occupier exclusive possession. If
exclusive possession at a rent for a term does not constitute a
tenancy then the distinction between a contractual tenancy and
a contractual licence of land becomes wholly unidentifiable.
In Somma v. Hazelhurst [1978] 2 All ER 1011, [1978] 1
WLR 1014 a young unmarried couple, H and S, occupied a
double bed-sitting room for which they paid a weekly rent. The
landlord did not provide services or attendance and the couple
were not lodgers but tenants enjoying exclusive possession. But
the Court of Appeal did not ask itself whether H and S were
lodgers or tenants and did not draw the correct conclusion from
the fact that H and S enjoyed exclusive possession. The Court
of Appeal was diverted from the correct inquiries by the fact
that the landlord obliged H and S to enter into separate
agreements and reserved power to determine each agreement
separately. The landlord also insisted that the room should not
in form be let to either H or S or to both H and S but that each

should sign an agreement to share the room in common with
such other persons as the landlord might from time to time
nominate. The sham nature of this obligation would have been
only slightly more obvious if H and S had been married or if the
room had been furnished with a double bed instead of two single
beds. If the landlord had served notice on H to leave and had
required S to share the room with a strange man, the notice
would only have been a disguised notice to quit on both H and S.
The room was let and taken as residential accommodation with
exclusive possession in order that H and S might live together in
undisturbed quasi-connubial bliss making weekly payments. The
agreements signed by H and S constituted the grant to H and S
jointly of exclusive possession at a rent for a term for the
purposes for which the room was taken and the agreement
therefore created a tenancy. Although the Rent Acts must not
be allowed to alter or influence the construction of an agreement,
the court should, in my opinion, be astute to detect and frustrate
sham devices and artificial transactions whose only object is to
disguise the grant of a tenancy and to evade the Rent Acts. I
would disapprove of the decision in this case that H and S were
only licensees and for the same reason would disapprove of the
decision in Aldrington Garages Ltd v. Fielder (1978) 37 P &
CR 461 and Sturolson & Co v. Weniz (1984) 272 EG 326.
In the present case the Court of Appeal held that the
agreement dated 7th March 1983 only created a licence. Slade,
LJ accepted that the agreement and in particular cl 3 of the
agreement—
shows that the right to occupy the premises

conferred on [Mrs Mountford] was intended as
an exclusive right of occupation, in that it was
thought necessary to give a special and express
power to [Mr Street] to enter …
Before your Lordships it was conceded that the agreement

conferred the right of exclusive possession on Mrs Mountford.
Even without cl 3 the result would have been the same. By the
agreement Mrs Mountford was granted the right to occupy
residential accommodation. Mr Street did not provide any
services or attendance. It was plain that Mrs Mountford was
not a lodger. Slade, LJ proceeded to analyse all the provisions
of the agreement, not for the purpose of deciding whether his
finding of exclusive possession was correct, but for the purpose
of assigning some of the provisions of the agreement to the
category of terms which he thought are usually to be found in a
tenancy agreement and of assigning other provisions to the
category of terms which he thought are usually to be found in a
licence. Slade, LJ may or may not have been right that in a
letting of a furnished room it was ‘most unusual to find a provision
in a tenancy agreement obliging the tenant to keep his rooms in
a ‘tidy condition’’. If he was right about this and other provisions
there is still no logical method of evaluating the results of his
survey. Slade, LJ reached the conclusion that ‘the agreement
bears all the hallmarks of a licence, rather than a tenancy, save
for the one important feature of exclusive occupation’. But in
addition to the hallmark of exclusive occupation of residential
accommodation there were the hallmarks of weekly payments
for a periodical term. Unless these three hallmarks are decisive,
it really becomes impossible to distinguish a contractual tenancy
from a contractual licence save by reference to the professed
intention of the parties or by the judge awarding marks for
drafting. Slade, LJ was finally impressed by the statement at
the foot of the agreement by Mrs Mountford ‘I understand and
accept that a licence in the above form does not and is not
intended to give me a tenancy protected under the Rent Acts.’
Slade, LJ said:
… it seems to me that if [Mrs Mountford] is to

displace the express statement of intention
embodied in the declaration, she must show that
the declaration was either a deliberate sham or at
least an inaccurate statement of what was the true
substance of the real transaction agreed between
the parties …
My Lords, the only intention which is relevant is the intention

demonstrated by the agreement to grant exclusive possession
for a term at a rent. Sometimes it may be difficult to discover
whether, on the true construction of an agreement, exclusive
possession is conferred. Sometimes it may appear from the
surrounding circumstances that there was no intention to create
legal relationships. Sometimes it may appear from the
surrounding circumstances that the right to exclusive possession
is referable to a legal relationship other than a tenancy. Legal

relationships to which the grant of exclusive possession might
be referable and which would or might negative the grant of an
estate or interest in the land include occupancy under a contract
for the sale of the land, occupancy pursuant to a contract of
employment or occupancy referable to the holding of an office.
But where as in the present case the only circumstances are
that residential accommodation is offered and accepted with
exclusive possession for a term at a rent, the result is a tenancy.
The position was well summarised by Windeyer, J sitting in
the High Court of Australia in Radaich v. Smith (1959) 101
CLR 209 at 222, where he said:
What then is the fundamental right which a tenant

has that distinguishes his position from that of a
licensee? It is an interest in land as distinct from a
personal permission to enter the land and use it for
some stipulated purpose or purposes. And how is
it to be ascertained whether such an interest in
land has been given? By seeing whether the
grantee was given a legal right of exclusive
possession of the land for a term or from year to
year or for a life or lives. If he was, he is a tenant.
And he cannot be other than a tenant, because a
legal right of exclusive possession is a tenancy and
the creation of such a right is a demise. To say
that a man who has, by agreement with a landlord,
a right of exclusive possession of land for a term is
not a tenant is simply to contradict the first
proportion by the second. A right of exclusive
possession is secured by the right of a lessee to
maintain ejectment and, after his entry, trespass.
A reservation to the landlord, either by contract or
statute, of a limited right of entry, as for example
to view or repair, is, of course, not inconsistent with
the grant of exclusive possession. Subject to such
reservations, a tenant for a term or from year to
year or for a life or lives can exclude his landlord
as well as strangers from the demised premises.
All this is long-established law: see Cole on
Ejectment ((1857) pp 72–73, 287, 458).
My Lords, I gratefully adopt the logic and the language of
Windeyer, J. Henceforth the courts which deal with these
problems will, save in exceptional circumstances, only be
concerned to inquire whether as a result of an agreement relating
to residential accommodation the occupier is a lodger or a tenant.
In the present case I am satisfied that Mrs Mountford is a tenant,
that the appeal should be allowed, that the order of the Court of
Appeal should be set aside and that Mr Street should be ordered
to pay the costs of Mrs Mountford here and below.
Appeal allowed.
(d) Lease or Licence – Rent Act - Subletting – Factors

negativing existence of lease – Acts of Friendship, Charity
or Generosity
NIP LIMITED v. ZAMBIA STATE INSURANCE CORPORATION

LIMITED (1993/1994) ZR 144
Court delivered by GARDNER, JS]
This is an appeal from a judgment of the High Court refusing a

declaration that the appellant was entitled to the tenancy of a
flat on lease from the respondent, and refusing the grant of
damages for wrongful deprivation of the right to occupy the
flat.
The facts of the case are that the appellant was the tenant
of the flat owned by the respondent. In or about June 1992 the
appellant allowed one Mainga Mwaanga to occupy the flat and
on the 15th of September 1992 the respondent gave notice of
termination of the tenancy on the ground that the appellant had
sublet the property to a third party. Thereupon the respondent
entered into a tenancy agreement with the employers of
Mwaanga.
In his affidavit in support of the originating notice of motion,
one Panchal, the Managing Director of the appellant company,
maintained that he had not sublet the flat, but had allowed
Mwaanga to occupy the flat as a friend because his wife had
just delivered a child and needed shelter for at least a month.
Attached to the affidavit was a letter written by Mwanga reading
as follows:
To Nip Ltd.,
Dear Mr Panchal,
This is to confirm that flat No. 1 Premium Court has

been given to me on a temporary basis for a month
during the time I had no accommodation. I had not
been subletting from him. I thank you for your
assistance.
Mainga Mwaanga
Signed
And in an affidavit sworn in opposition to the

application there was exhibited a further letter written
by Mwaanga, which was in contradiction of the first
letter, as follows:
Zambia State Insurance Corporation Limited
PO Box 30894
LUSAKA
6th November, 1992
Curray Ltd.,
PO Box 30661
LUSAKA
Dear Sir,
I am writing to you to clarify why I wrote the
contradictory letter to Mr Panchal of NIP LTD saying
that I did not pay him any money for staying in his
flat. I wrote this letter because Mr Panchal had
asked me to as a favour, because he did not want NIP
LTD to know that he had received money from me for
the flat. The truth of the matter is that he was subletting
the flat to me at sixty five thousand kwacha a month
(K65,000.00) and I paid him this amount for three
months before this matter came to your attention. I
hope this will clear the air on why I wrote the letter
to Mr Panchal.
Yours faithfully
Mainga Mwaanga
At the hearing before the High Court Panchal gave evidence

that he had only helped Mwaanga temporarily, that he had
received no money from him and that he had left all his furniture
in the flat. In reply, for the respondent, Mwaanga gave evidence
that he was allowed to rent the flat for sixty-five thousand
kwacha per month and Panchal had told him to write the first
letter saying that he was not a subtenant in order to prevent the
respondent corporation from alleging that there has been
subletting. He then decided to become a direct tenant of Zambia
State Insurance Corporation Limited because the appellant was
overcharging him, that is to say, he was charging him sixty-five
thousand kwacha per month instead of twenty-seven thousand
kwacha per month which was being paid by the appellant to the
respondent. In his evidence Mwaanga confirmed that the flat
was fully furnished.
There was evidence from a representative of the respondent
corporation confirming that the premises had been let to the
appellant but the witness could not recall whether there was
any written lease. There was no evidence that there was any
covenant against subletting with or without consent, but the
witness said that the tenancy was terminated because there
had been a breach of a clause of the tenancy agreement by
subletting the flat to someone unknown to the respondent
corporation. The witness said that the flat had now been let to
the employers of Mwaanga because the corporation preferred
to deal with limited companies as tenants. We were informed
by counsel that the new letting was at the rate of sixty five
thousand kwacha per month.
The learned trial judge found that Panchal had not told the
court the truth when he said that he allowed Mwaanga to use
the flat and his household goods free of charge. He therefore
believed that Mwaanga was a tenant of the appellant for three
months. The learned trial judge then held that this meant that
under section 13 (1)(g) of the Rent Act the plaintiff was subletting
the flat. For this reason the learned trial Judge refused to order
that the appellant’s tenancy should continue.
On appeal, Mr Mwansa asked this court to find that Mwaanga
should not have been believed when he said that he had paid
sixty-five thousand kwacha per month. He further argued that
before the respondent repossessed the flat there should have
been a court order for such repossession.
Mr Mundashi on behalf of the respondent replied that the
learned trial Judge was entitled to believe Mwaanga’s evidence
that he had paid sixty-five thousand kwacha per month. Mr
Mundashi further very fairly conceded that the learned trial Judge
had implicitly accepted that the appellant had allowed Mwaanga

to occupy the flat temporary because his wife had just had a
baby, and that the intention was that the occupation was to be
temporary, even though it was to be paid for. Mr Mundashi, in
answer to a question by the court maintained that even if it was
to be a temporary arrangement it was a subletting and not a
licence.
We note from a record of evidence that apart from a
statement in cross-examination that he allowed Mwanga to
use all the furniture and utensils free of charge Panchal was not
cross-examined in connection with his statement in his evidence
in chief that he did not receive any money, nor about the allegation
by Mwanga that he had paid sixty-five thousand kwacha per
month. In contrast Mwaanga was cross-examined quite strongly
about the arrangement he had with Panchal and as a result of
that he answered that no one persuaded him to write either of
the two letters. It follows from this, as was argued by Mr
Mwansa, that Mwaanga was under no coercion to write the
first letter in which he said that the flat was given to him on a
temporary basis and that there had been no subletting. On this
evidence it is difficult to understand on what grounds the learned
trial judge preferred Mwaanga’s evidence concerning the
payment by him of rent. Be that as it may, it appears that all the
parties and the learned trial Judge assumed that any payment
received by Panchal for occupation of the flat would render the
transaction a subletting and make it impossible for the transaction
to be a licence. We accept that from the tone of the learned
trial judge’s judgment he did not disbelieve Panchal when he
said that it was his intention to do Mwaanga a favour for a
limited period only.
We are alive to the need for the courts to guard against the
possibility that parties may endeavour to avoid the control of the
Act by granting a licence instead of a tenancy. However, it is
not the intention of the courts to construe agreements freely
made between two parties in any way that will defeat the honest
intention of the parties.
In this case no evidence of terms of appellant’s tenancy
agreement could be given by the witness for the respondent
although he said that the tenancy was terminated because the
appellant was in breach of a covenant against subletting, he
conceded that the agreement may have been oral, in which event
it is unlikely that such a covenant would have been mentioned,
and, in any event, his evidence that the terms of the tenancy
agreement were not within his own knowledge made it impossible
for him to say that there was a covenant against subletting.
That being the case, the only provisions relating to subletting
without consent are statutory, and the appellant argues that they
are inapplicable because the grant of the permission to Mwaanga
to occupy the premises temporarily was a licence and not a
subletting. We would comment here that the appellant, being a
company, cannot occupy the premises physically and has to allow
some individual person to occupy on its behalf.
Megarry, in the Rent Act (9th Edn) at page 52 has this to say:
The fact that a licence is outside the Acts may be

some grounds for inferring that the grantor never
intended to grant a tenancy, yet it is uncertain
how far the grantor’s intention will ultimately
prevail. On one view, if the intention of the grantor,
accepted by the grantee, is to create a licence and
no tenancy, it would be wrong for the court to
extract from the grantor an estate or interest in
land in the teeth of the intention of the parties, at
all events if the words or document by which the
transaction was effected are apt for a licence and
not for a tenancy. On the other hand, if by being
sufficiently careful in their drafting and explicit in
their refusal to grant tenancies landowners could
escape the Acts with ease, the social consequences
would be grave. There have hitherto been enough
flaws in the drafting or uncertainty in the
surrounding circumstances to enable the courts to
hold that tenancies have been created in all the
reported cases were such a result seemed proper.
The court will certainly scrutinise with great care
any document or transaction, the sole object of
which is to avoid the Acts.
In Facchini v. Bryson (1952) ITLR 1389 p. 1389, Denning, LJ

said:
In all cases where an occupier has been held to be

a licencee there has been something in the
circumstances, such as a family arrangement, an
act of friendship or generosity, or such like, to

negative any intention to create a tenancy.
The above quotation appears on page 50 of Megarry. And on

page 51 it is made quiet clear that the payment of a consideration
for such occupation will not of itself prevent the transaction
from being a licence. The authorities indicate that the
surrounding circumstances must be looked at also. In this case,
when Mwaanga was introduced by a mutual friend, he was in
desperate straits because his wife had just given birth to a baby
and he had no accommodation whatsoever. The fact that
Panchal left all his own furniture, bedding and utensils in the flat
can be regarded as an indication that he did not intend to part
with the possession of the flat within the terms of the definition
of a lease in section 2 of the Rent Act. If the appellant did not
intend to part with the possession of the flat in those terms then
the occupation by Mwaanga would not come within the terms
of section 13(1) of the Rent Act, that is, subletting or parting
with possession without the consent of the landlord.
Part of the surrounding circumstances in the case was that
Panchal had a mistress who had been occupying the flat but
who had gone to Kenya, and it was suggested that it was only
because she returned and reconciled with Panchal that he
required to regain the flat from Mwaanga. However, the
question of whether or not the return of the mistress was
unexpected or whether or not there has been a reconciliation
was not put to Panchal in cross-examination and there is nothing
in those circumstances to suggest that when Mwaanga was
allowed to go into occupation Panchal did not anticipate any
further need for the flat.
Taking into consideration the whole of the surrounding
circumstances we are quite satisfied that it was obviously the
intention of the parties that Mwaanga was to be allowed only
temporary occupation of the flat because of his desperate plight,
and, whether or not payment was made by Mwaanga for such
occupation, there was never an intention between the parties to
grant anything other than a licence to occupy the premises for a
short period.
We have considered s. 26 of the Act which provides for sub-
lettings of less than six months, and, although the appellant
could have sublet under this section by asking permission from
the landlord or the court, there was nothing to prevent him from
choosing to grant a licence instead.
We have also considered s.13 (1)(d) of the Act and, as, we
are satisfied that, the grant of a right of occupancy was no more
than a licence, that section does not apply.
We find that the appellant did not sublet the premises within
the terms of s.13 (1)(g) of the Act. The appeal is allowed and
the appellant is entitled to a declaration that the purported
termination of his tenancy was null and void….
(e) Trespass to land – effect of a licence – A third party who

enters on land at the express invitation of a licensee who
has the right in terms of the licence to invite third persons
on to the land cannot be said to have entered unlawfully
In Shell & BP Zambia Limited v. Conidaris and Others,61 the appellant

had on 6 December 1973, entered into a licence agreeement with C,
who was not a party to the proceedings, in respect of a service station.
C had been in occupation since 1967, but the basis of that occupation
prior to 6 December 1973, was not stated. Very shortly thereafter C,
according to his affidavit, made an arrangement with the defendants
(the respondents) whereunder he entrusted the running of the service
station to them on account of his long absence from Zambia, and he
deposed that the entire premises had always been in his possession,
supervision and control and that the defendants had remained on the
premises with his permission for the purpose of assisting him in the
running of the station. On 13 August 1974, the plaintiff issued a specially
endorsed writ in which it was claimed that in or about June 1974, the
defendants wrongfully entered and took possession of the premises and
thereafter wrongfully remained in possession. On 26 September the
plaintiff issued a summons for an interlocutory injunction alleging that as
a result of the trespass by the defendant the plaintiff could not use the
service station for the sale of its goods and fuel.
It was held, inter alia, by the Supreme Court that:
(a) Trespass to land is an unlawful entry on land in the possession
of another; a licence prevents the entry of the licensee from
being a trespass and renders it lawful.
(b) If while on the land the licensee behaves in a manner prejudicial
to the interests of the licenser, whether or not in contravention
of the terms of the licence, he does not become a trespasser, he
61
(1975) ZR 174.
becomes a trespasser only if the licence is validly revoked and

after a reasonable time has elapsed to enable him to remove
himself and his belongings.
(c) Equally, a third person who enters on land at the express
invitation of a licensee who has the right in terms of the licence
to invite third persons on to the land cannot be said to have
entered unlawfully.
(d) To seek to found an action in trespass on a breach of the terms
of a licence is to confuse the conduct constituting the alleged
breach with the initial entry (or continued presence) on the land.
(e) (Gardner, JJ, dissenting) On the facts, it had not been established
that what the defendants were doing was in contravention of
the terms of the license. But even if it were, as agents of the
licensee their presence on the premises was permitted by the
terms of the licence and could not be a trespass against the
plaintiff.
BARON, DCJ: This is an appeal against the dismissal by the High

Court of the plaintiff’s summons for an interlocutory injunction.
On the 6th December, 1973, the plaintiff entered into a licence
agreement with one Cavadias, who is not a party to these
proceedings, in respect of a service station in Emmasdale,
Lusaka. It appears from the papers that Cavadias had been in
occupation of the premises since 1967, but precisely what was
the basis of that occupation prior to the 6th December, 1973, is
not stated. Very shortly thereafter the licensee, according to his
affidavit in these proceedings, made an arrangement with the
defendants which he expressed in the following terms:
8. On account of my long absences from Zambia I

have entrusted the running of the petrol filling station
in the said premises to: Messrs Angelos Conidaris,
Pindaros Conidaris and George Conidaris with
effect from 15th December, 1973.
9. The entire premises which are the subject matter
of this action have always been in my possession,
supervision and control and Messrs Angelos
Conidaris, Pindaros Conidaris and George Conidaris
have remained on the premises with my permission

for the purpose of assisting me in the running of
my petrol filling station for the reason set out in
paragraph (8) above.
On the 13th August, 1974, the plaintiff issued a specially endorsed

writ in which it was claimed that in or about June, 1974, the
defendants wrongfully entered and took possession of the
premises and thereafter wrongfully remained in possession. On
the 26th September the plaintiff issued a summons for an
interlocutory injunction. In the affidavit in support it was alleged
that:
As a result of the said trespass by the defendants

on the premises, the plaintiff cannot use the petrol
and service station thereon for the sale of its goods
and fuel. The plaintiff is therefore losing its gross
margin on sales which . . . I estimate [at] . . .
about K738 per month . . .
Precisely what was the basis of the plaintiff’s complaint against

the defendants is obscure; it seems that other proceedings had
subsequently been commenced to which other persons had been
made parties and in which the allegations had been set out, but
on the papers before us there is nothing of relevance save what
I have set out above and of course the licence agreement itself,
to the terms of which I will refer later.
Mr Lever on behalf of the plaintiff based his case on the
submission that the plaintiff is entitled to proceed against the
defendants as trespassers notwithstanding that they are not
trespassers against the licensee and even if they are on the
premises as invitees of the licensee. Mr Lever used ‘invitees’ in
the widest possible sense, namely as including employees. He
submitted that the relationship between the defendants and the
licensee was irrelevant, and initially he went so far as to submit
that even if what the defendants were doing was permitted in
terms of the licence agreement this could not assist them.
Clearly the proposition stated in these wide terms is untenable.
For instance, as Mr Lever finally conceded, an employee of the
licensee doing only what was contemplated and permitted by
the licence cannot be a trespasser against the licenser; equally,
a customer coming on to the premises to buy petrol cannot,

without more, be a trespasser against the plaintiff. But even if
one were to qualify Mr Lever’s proposition by restricting its
operation to persons who were in breach of the provisions of
the licence it would still in my view be untenable; the relationship
between the licensee and the alleged trespasser cannot be
ignored. On the facts of this case it is unnecessary to decide the
point, but because it was argued at such length and with such
tenacity by Mr Lever I think I should express my views on it.
Trespass to land is an unlawful entry on land in the possession
of another; a licence prevents the entry of the licensee from
being a trespass and renders it lawful. If while on the land the
licensee behaves in a manner prejudicial to the interests of the
licenser, whether or not in contravention of the terms of the
licence, he does not become a trespasser; he becomes a
trespasser only if the licence is validly revoked and after a
reasonable time has elapsed to enable him to remove himself
and his belongings. Equally, a third person who enters on land at
the express invitation of a licensee who has the right in terms of
the licence to invite third persons on to the land cannot be said
to have entered unlawfully. If while on the land the invitee
conducts himself in a manner prejudicial to the interests of the
licenser no doubt the latter will have his remedy, certainly against
the invitee and perhaps also, vicariously, against the licensee.
But even if that remedy includes, as against the licensee, the
right to revolve the licence, it must be a remedy directly in respect
of the conduct complained of, not indirectly by way of trespass;
it cannot in my view be alleged that an entry is unlawful when in
fact that entry is permitted by the terms of the licence. To seek
to found an action in trespass on a breach of the terms of the
licence involves a fundamental fallacy, a confusion between the
conduct constituting the alleged breach and the initial entry (or
continued presence) on the land.
It is necessary therefore to decide whether on the facts of
this case the licensee had the right to invite or permit third persons
to enter on to the land. The written agreement between the
plaintiff and the licensee describes itself as a licence. Clause 1
of the operative part commences with the words:
1. The Company being entitled to and remaining

in occupation and possession of the station
hereinafter defined . . .
Clauses 2, 3 4 and 5 read:
2. The purposes for which this licence is granted

are to enable the licensee to carry on upon the
station:
(a) The business of selling by retail (subject
as hereinafter provided) such grades of
automotive fuel (which expression in this
licence means and includes petrol and any
other fuel whatsoever which may be or
have been introduced for use in automotive
vehicles) oils greases and other petroleum
products as the company may from time
to time nominate;
(b) the business of rendering and supplying
(subject as herein after provided) such
services and commodities (other than as
aforesaid) as are commonly rendered and
sold at garages filling and motor service
stations;
(c) the business of garaging motor vehicles
and of maintaining servicing repairing and
overhauling motor vehicles and the
component parts thereof and accessories
thereto;
(d) the business of a dealer in new and
secondhand motor vehicles;
(e) such other business as may be agreed in
writing by the company and the licensee.
3. This licence is exclusively personal to the
licensee.
4. This licence shall not confer upon the licensee
any right to occupy or to possess the station or
any part or parts of the same and such
occupation and possession and the rights to such
occupation and possession shall at all times
during the subsistence of this licence remain
vested in the company or its successors in title.
5. This licence shall commence on the 1st day of
January, 1974, at the end of 10 years from the
commencement of this licence, namely on 1st
January, 1984, or any date thereafter, the
company shall have the option to review the
terms and conditions of this licence.
Clause 6 sets out what can only be described as detailed

covenants by the licensee, and in particular the following sub-
clauses:
(d) continue to operate and carry on the said
businesses at and upon the station and shall
ensure that the forecourt forming part of the
station is kept open and staffed for the sale of
automotive fuel during the whole period of
twenty-four hours on each and every day unless
otherwise agreed by the company in writing;
(e) employ competent staff and shall ensure that
the standard of service and sales at the station
is efficient;
(m) ensure that the said businesses carried on upon
the station are continuously and effectively
supervised controlled and carried out during
normal working hours by competent and
responsible employees of the licensee.
Clause 7 contains ‘covenants’ by the company. Clause 8 deals
with the mutual rights and obligations of the parties in certain
events and clause 9 deals with termination in the following terms:
9. This licence shall terminate upon the happening
of any of the events following that is to say:
(a) Upon the expiration of ninety days’ notice
in writing in that behalf served by the
licensee upon the company;
(b) upon the expiration of ninety days’ notice
in writing in that behalf served by the
company upon the licensee if the licensee
shall have failed to perform or committed
any breach of the obligations herein
undertaken by the licensee or in the event
of the company no longer being entitled to
the occupation and possession of the
station;
(c) forthwith upon service by the company
upon the licensee of notice in writing in
that behalf if the licensee shall have become
bankrupt or (being a corporation) shall have
entered 30 into liquidation whether
voluntary or compulsory or if the licensee
shall have entered into any arrangement
or composition with creditors generally
AND if at the expiration of one calendar
month after the termination of this licence
any chattel or thing belonging to the
licensee shall remain upon the station then
upon such expiration the company shall
become the agent of the licensee with
authority at the expense of the licensee to
remove store sell or otherwise dispose of
such chattel or thing as the company shall
think fit.
It is trite that an agreement is not to be construed as a licence

simply because the parties so describe it; “the relationship of
the parties is determined by law on a consideration of all the
relevant provisions of the agreement” (Halsbury’s Laws of
England, Vol. 23, p. 427, para 1022). I have some reservations
as to whether this agreement is in truth a licence (see for instance
the comments of Buckley, LJ, in Shell - Mex & B.P. Ltd v.
Manchester Garages Ltd at p. 846, and Addiscombe Garden
Estates Ltd v. Crabbe], but Mr Patel on behalf of the defendants
was content to argue the matter on the basis that it was and I
will assume in favour of the plaintiff that it is. The question is
whether on a proper construction of the whole document the
licensee had the right to invite or permit the defendants to enter
and remain on the station. Mr Lever submitted that he had not,
and he pointed to clauses 1, 3 and 4 and argued that in terms of
these clauses occupation and possession of the station remained
vested in the plaintiff and that the right of the licensee physically
to be on the land was in terms of clause 3 exclusively personal
to him.
I find it unnecessary to consider the various senses in which
the words ‘possession’ and ‘occupation’ are used in relation to
land. Suffice it to say that they are normally used in contrasting
senses, and while there is no difficulty with the concept that
possession of the plaintiff’s estate or interest in the land remains
vested in it, I am at loss to understand how it can be argued
that in view of the rights and obligations of the parties as set out
in such great detail in the agreement the licensee does not have
the right to occupy the station at least to the extent that he
shares that right with the plaintiff. Mr Lever suggested that the
plaintiff retained exclusive occupation of the land and the licensee

had the right of physical presence only in such of the buildings
and other portions of the station as were necessary to enable
him to conduct his business thereon; Mr Lever was not however
able to suggest how this submission could be reconciled with
the words in clause 4 ‘or in part or parts of the same’. In my
view, to suggest that the licensee in this case does not have the
right to occupy the station is to do violence to language and to
give a meaning to the word ‘occupy’ which is in direct conflict
with the rights and obligations of the licensee set out in the
agreement. In my judgment clause 4 of the agreement read in
the context of the whole must at best from the plaintiff’s point
of view be construed as meaning that both parties are deemed
to be in occupation of the land.
Mr Lever argued also, but without any great enthusiasm,
that clause 3 of the agreement gave the licensee personally the
right to be on the land but took from him the right to bring anyone
else thereon. He suggested that although the remainder of the
agreement clearly contemplated that other people would be on
the land, this clause retained in the licensor the right to turn any
such person off at will. I confess myself quite unable to
appreciate such an argument. If clause 3 removes from the
licensee the legal right to invite or permit anyone else to enter
on the land, then to do so becomes a breach of the agreement;
it matters not that the licenser might choose not to exercise his
rights consequent on such breach. When one considers the rights,
and indeed the obligations, of the licensee set out in such detail
in the agreement it is ludicrous to suggest that he can exercise
those rights and carry out his obligations entirely by himself, and
it is manifest that this was never the intention of the paries. The
parties clearly contemplated and intended that the licensee would
engage competent staff: at all levels, including the managerial
level, and it cannot therefore be argued that to do so is a breach
of the agreement. In these circumstances I am unable to give
any meaning to clause 3 of the agreement which is not totally
inconsistent with the remainder; it must therefore be ignored.
In the result I am fully satisfied that the terms of this licence
give the licensee the right to invite and permit third persons to
enter on to the land, and that if the plaintiff complains that the
defendants while on the land committed a breach of the terms
of the licence its remedy, whatever it might be, is certainly not in
trespass. On the papers before us it is far from clear what the
defendants were alleged to be doing and in what respects this
was alleged to be in breach of the licence. It might be argued
that the statement in the plaintiff’s affidavit in support that ‘as
a result of the said trespass . . . the plaintiff cannot use the
petrol and service station . . . for the sale of its goods and fuel’
can be construed only as an allegation that the defendants were
selling some other company’s products. This is by no means a
necessary implication, another possible construction is that the
plaintiff was unable to sell his products because it regarded the
defendants as trespassers (as is clearly the case) and declined
to supply them with fuel and other products or to do any business
with them. Be that as it may, what is abundantly clear is that so
far as this court is concerned there is nothing entitling us to go
behind the affidavit of the licensee as to his relationship with the
defendants, who must in my judgment be held to be the duly
authorised agents of the licensee. Even if what the defendants
were doing was in contravention of the terms of the licence
(which has not been established), as agents of the licensee their
presence on the premises was permitted by the terms of the
licence and could not be a trespass against the plaintiff. On this
ground alone the summons cannot in my view succeed.
(f) If a servant is required to occupy land in order the better

to do his work or is merely permitted to do so because of
its convenience for his work and this arrangement is
treated as part and parcel of his remuneration, then he is
a licensee; but if he is given an interest in land, separate
and distinct from his contract of service, at a sum properly
regarded as a rent, then he is a tenant
In Agricultural Finance Company Limited v. Mweemba and

Another,62 the plaintiff claimed possession of a farm in Lusaka. The
owner of the farm had mortgaged the same to the Land and Agricultural
Bank of Zambia Limited whose assests subsequently passed to the
plaintiff. The owner had failed to discharge the mortgage and
consequently the benefits became vested in the plaintiff. The plaintiff in
exercise of the statutory powers of sale sold the farm. The contract of
sale included vacant possession. The defendants were occupying the
farm when the purchaser took possession. Eviction notices were served
to the defendants to vacate the farm. The first defendant’s occupation
of the land on the farm until 1967 arose out of his contract of employment
with the owner of the land and thereafter he was allowed to stay on the
farm until it was sold. The second defendant entered the farm in 1971
62
(1977) ZR 138.
after the first defendant had given him a small portion of land to till. The
defendants claimed that they were in legal possession of the farm and
had an interest in the land. It was held, inter alia, by the High Court
(Cullinan, J) that:
(i) If a servant is required to occupy land in order

the better to do his work or is merely permitted
to do so because of its convenience for his work
and this arrangement is treated as part and parcel
of his remuneration, then he is a licensee; but if
he is given an interest in land, separate and
distinct from his contract of service, at a sum
properly regarded as a rent, then he is a tenant.
(ii) Reservation of rent is not essential to a tenancy
arising out of a contract of employment, but
once parties agree on the reservation of rent in
a particular form (such as the provision of
labour) then that particular tenancy would end
on the withdrawal of such consideration.
(iii) Upon a true construction, the terms of the
licences were such as to terminate the
defendants’ licences upon sale of the farm and
the defendants on sale were not in legal
possession of the farm.
CULLINAN, J,… I turn then to consider the nature of the interest, if any,
which the defendants have in the land in question. Mr Mweemba’s
occupation of the small plot of land on the farm up until 1967 arose
out of his contract of employment with Mr Grobler. The question
of whether or not occupation by an employee is subservient, that
is, whether it amounts to a licence or a tenancy, has been the subject
of much, some of it very old authority. Of the more recent authorities
it seems to me that the following passage from the judgement of
Denning, LJ in the Court of Appeal case Torbett v. Faulkner63 at
p. 660 summarises the position:
Previously the holding of a servant was classified

either as a service occupation or as a service tenancy.
There was no third category. But nowadays it is
63
[1952] 2 TLR 659.
recognised that there is an inter mediate position. He
may be a licensee. A service occupation is, in truth,
only one form of licence. It is a particular kind of
licence whereby a servant is required to live in the
house in order the better to do his work. But it is now
settled that there are other kinds of licence which a
servant may have. A servant may in some
circumstances be a licensee even though he is not
required to live in the house, but is only permitted to
do so because of its convenience for his work - see
Ford v. Langford64 per Lord Justice Asquith, and
Webb, Ltd v. Webb (unreported, October 24, 1951) -
and even though he pays the rates, Gorham
Contractors Ltd v. Field (unreported, March 26,
1952), and even though he has exclusive possession,
Cobb v. Lane.65 If a servant is given a personal
privilege to stay in a house for the greater
convenience of his work, and it is treated as part and
parcel of his remuneration, then he is a licensee, even
though the value of the house is quantified in money;
but if he is given an interest in the land, separate and
distinct from his contract of service, at a sum properly
to be regarded as a rent, then he is a tenant, and none
the less a tenant because he is also a servant. The
distinction depends on the truth of the relationship
and not on the label which the parties choose to put
upon it: see Facchini v. Bryson.66
It seems to me that in the present case Mr Mweemba’s

occupation of the small plot of land was not subservient. His
occupation was not that of the normal farm-hand who is required
to live on the farm, where his assistance is immediately available
throughout all the exigencies of the farming day: he worked for
three months of the year only, even if it can be said that those
three months represented a large portion of the working year on
a farm dependent upon seasonal rains: he did not receive any
salary as such. He was allowed to occupy the plot of land the
rent therefore being paid in the form of his labour. As I see it, he
was a tenant of the small plot and not a mere licensee.
Nonetheless such tenancy arose out of the contract of
64
[1949] 65 TLR 138.
65
[1952] 1 TLR 1037.
66
[1952] 1 TLR 1386.
employment. The only stipulation as to rent was that it would be

supplied by Mr Mweemba’s labour: no price was set on it: that
was the agreement. There was no deduction from salary in
respect thereof so that if the employment terminated a payment
equal to such deducting might be accepted as rent. It seems to
me therefore that if the contract of employment was to be
terminated that there would then be no consideration for the
tenancy. While the reservation of rent is not essential to a tenancy
I consider that once the parties agreed on the reservation of rent
in a particular form that they agreed that that particular tenancy
would end on the withdrawal of such consideration. I am satisfied
that Mr Mweemba accepted this situation. When asked how he
expected to render services to Mr Grobler after the latter’s
departure in 1967 he replied ‘I made an agreement with him to
buy the farm’. That as I see it constitutes an admission of the
termination of the earlier tenancy. Either party had the power to
terminate the contract of employment and therefore the tenancy.
In my judgment it constituted a tenancy at will - see e.g., Smith
v. Seghill Over-seers67 determinable for example by Mr Grobler
upon his expressly or impliedly intimating to Mr Mweemba that
he wished the tenancy to end. Apart altogether from Mr Grobler’s
proposed and subsequent departure, his letter to Mr Mweemba
constituted such intimation.
The terms of that letter indicated that Mr Mweemba could
stay on to the farm until it was sold, presumably by AFC. His
occupation of the farm, or even the small plot thereon, was not
then determinable at the will of Mr Grobler, as only AFC could
determine the date of sale. There was no tenancy at sufferance:
where the small plot was concerned it cannot be said that there
was a holding over without the landlord’s assent or dissent -
there was clear consent: as for as the whole farm was concerned
there was no holding over. In my view there was no tenancy
known to law and Mr Grobler’s letter to Mr Mweemba, whether
or not it authorised occupation of the whole farm or a small part
thereof, constituted no more than a licence.
In the Court of Appeal case Errington v. Errington,68
Denning, LJ considered the nature of a licence (at pp. 154/155)
citing a number of cases in which it had arisen. He observed (at
p.155 at D) that the licensees in question
67
[1975] LR 10 QB 422.
68
[1952] 1 All ER 149.
... were, however, not bare licensees. They were
licensees with a contractual right to remain. As
such they have no right at law to remain, but only
in equity, and equitable rights now prevail. I confess,
however, that it has taken the courts some time to
reach this position. At common law a licence was
always revocable at will, notwithstanding a contract
to the contrary: Wood v. Leadbetter. 69 The
remedy for a breach of the contract was only in
damages. That was the view generally held until a
few years ago: see for instance, what; was said in
Booker v. Palmer;70 Thompson v. Park.71 The
rule has, however, been altered owing to the
interposition of equity. Law and equity have been
fused for nearly eighty years, and since 1948 it
has become clear that, as a result of the fusion, a
licensor will not be permitted to eject a licensee
in breach of a contract to allow him to remain: see
Winter Garden Theatre (London) Ltd v.
Millennium Productions Ltd72 per Lord Greene,
MR (1947) 2 All ER 336, per Viscount Simon; nor
in breach of a promise on which the licensee has
acted even though he gave no value for it: see
(Foster v. Robinson) 2 All ER 342 at p. 346,
where Sir Raymond Evershed, MR said that as a
result of the oral arrangement to let the man stay,
he ‘was entitled as licensee to occupy the cottage
without charge for the rest of his days ...’ This
infusion of equity means that contractual licences
now have a force and validity of their own and
cannot be revoked in breach of the contract.
Neither the licenser nor anyone who claims through
him can disregard the contract except a purchaser
for value without notice.
The Court of Appeal case Binions v. Evans,73 concerned a

widow and a written agreement to occupy a cottage for life,
free of rent and rates. Lord Denning, MR observed (at p. 75 at
c to g):
69
[1845] 13 M & W 838.
70
[ 1942] 2 All ER 674 at p. 677.
71
[1944] 2 All ER 477 at a p. 479.
72
[1946] 1 All ER 678 at p. 680.
73
[1972] 2 All ER.
What is the status of such a licence as this? There

are a number of cases in the books in which a
similar right has been given. They show that a right
to occupy for life, arising by contract, gives to the
occupier an equitable interest in the land; just as it
does when it arises under a settlement [see Re
Carne’s Settled Estates74 and Re Boyer’s Settled
Estates]. The courts of equity will not allow the
landlord to turn the occupier out in breach of the
contract [see Foster v. Robinson at 346347] nor
will they allow a purchaser to turn her out if he
bought with knowledge of her right [Errington v.
Errington]75 It is instructive to go back to the cases
before the Judicature Act 1873. They show that, if
a landlord, by a memorandum in writing, let a house
to someone, let us say to a widow, at a rent, for
her life or as long as she pleased to stay, the courts
of equity would not allow the landlord to turn her
out in breach of his contract. If the landlord were
to go to the courts of law and obtain an order in
ejectment against her [as in Doe d Warner v.
Browne76 ], the courts of equity would grant an
injunction to restrain the landlord from enforcing
his rights at law [as in Browne v. Warner.77 The
courts of equity would give the agreement a
construction, which - Lord Eldon LC called an
‘equitable construction’ and construe it as if it were
an agreement to execute a deed granting her a
lease of the house for her life: [Browne v.
Warner. 78 They would order the landlord
specifically to perform the contract, so construed,
by executing such deed. This court did so in
[Zimbler v. Abrahams79 ]. This means that the
widow had an equitable interest in the land.
There Lord Denning, MR was dealing solely with the aspect of

a right to occupy for life. While he did not specifically state that
the agreement with the particular landlords gave rise to a trust,
74
[1899] 1 Ch 324.
75
[1952] 1 All ER 149 at p. 155.
76
[1807] 8 East 165.
77
[1808] 14 ves. 409].
78
Ibid.
79
[1903] 1 KB 577.
he considered nonetheless that a constructive trust was imposed
on the plaintiffs who purchased the cottage without vacant
possession, which aspect was reflected in the sale price, subject
to the widow’s rights under the agreement. Megaw, LJ
considered that the landlords remained trustees even after sale
of the cottage. Lord Denning, MR considered further that a
constructive trust arises where the purchaser takes the land
impliedly subject to the rights of a contractual licensee that is,
where the licensee is in actual occupation so that the purchaser
must know of his rights. The case of Binions however concerned
unregistered land and section 58 of the Lands & Deeds Registry
Act provides that a purchaser is not affected by notice of ‘any
trust or unregistered interest’ Different considerations apply
however where a caveat is lodged under section 76 to protect
such trust for example. It will be seen nonetheless from the
above quoted authorities that the equities involved were based
solely on the terms of the licence. Whether or not a trust exists
in this case therefore, express or implied, constructive or
otherwise, the plaintiffs’ obligations did not extend any further
than the terms of the letter written by Mr Grobler and that was
no more than a licence to remain on the farm until sold. That
licence conveyed no authority to grant any interest to Mr
Hangoma upon his arrival in late 1971. The latter therefore held
not even a licence from the landlord.
The letter from the defendants’ advocates of 16th October,
1972, would seem to suggest that AFC were required to give
first option on the sale of the property to the defendants. I cannot
see how this construction can be placed on the letter from Mr
Grobler. Mr Kawanambulu enlarges the proposition however
by reference to the plaintiffs’ conduct. There is nothing in the
correspondence to indicate that AFC ever promised a lease much
less a sale to the defendants: indeed the correspondence reflects
quite the opposite, indicating that the defendants were warned
against the risk involved in continuing to plough the land. I do
not accept Mr Mweemba’s evidence that Mr Lough promised
to arrange a lease at K700 p.a.: it was not mentioned in all the
correspondence: Mr Mweemba has no document to that effect:
AFC in their letter of 11th September, 1972, denied any offer of
a lease and such denial was never contested: I cannot see why
Mr Mweemba in April, 1972, would apply for a lease at a
minimum figure of K1,300, offering in fact K1,320, when in his
evidence, he had been offered a lease some five months earlier
at little more than half that sum: indeed I cannot see why AFC
in December, 1971, would offer a lease at such a deflated figure.
Mr Mweemba claims that he obtained a loan from AFC in
September, 1972, ‘to use on the farm’. Apparently he was
instructed to specify his village as his address, rather than Farm
673 on the application form. This suggests that the loan was in
respect of his family holding at his village. In cross-examination
he proved evasive on the point. I cannot see how AFC would
grant a loan in respect of a farm sold to another some three
months earlier, particularly when an eviction notice in respect
thereof was served on the defendants and others shortly before
or shortly after such loan. I do not accept Mr Mweemba’s
evidence on the point.
As I see it, AFC were content to leave Mr Mweemba on the
farm subject to the terms of his licence. If AFC ever had implied
notice of Mr Mweemba’s licence, it was not until December,
1971, some four years after Mr Grobler’s departure that they
had express notice thereof, and possibly of Mr Hangoma’s
presence, when for the first time it seems Mr Mweemba showed
an AFC official the letter. All of Mr Mweemba’s conduct up to
that and thereafter is inconsistent with his alleged right to
purchase or lease the farm. On his own evidence the farm was
advertised in 1967 and he, presumably with others, made
application for a lease. He made no objection to the lease granted
to Mr Roberts, or to the offer of sale to Mr Hanzooma at K18,000
despite his own alleged over at K20,000. Again he made
application, as did Mr Hangoma, for a lease in April, 1972. Indeed
neither Mr Mweemba or Mr Hangoma made objection to the
other’s application. All of such conduct acknowledged AFC’s
right to lease, or sell to whomsoever they pleased.
It is submitted that there is no proof of sale to Mr Jere. There
is Mr Jere’s and Mr Munungu’s evidence on the point: there is
the written contract of sale itself, all of which I accept. Mr
Kawanambulu submits in the alternative that the sale was
inequitable as the advertisement indicated a lease and not a
sale, as distinct from the other farms advertised, A respect of
which a sale price was also specified: he relies on the doctrine
of promissory estoppel. As I see it, there was no promise or
assurance of any kind involved. The advertisement in no way
constituted an offer: it indicated the ‘minimum acceptable terms’
and invited application, stating that ‘the highest or any tender is
not necessarily accepted’: it was nothing more than an invitation
to treat. The defendants each completed application forms by
which they agreed to ‘abide by the decisions of the Agricultural
Finance Company its Committees and staff”. I cannot see how
it can be said that either defendant altered his position to his
detriment thereby. I see nothing untoward in offering the farm
for sale to Mr Jere, who had some K20,000 cash on hand as
against Mr Mweemba’s K400 and Mr Hangoma’s K950,
specified on their application forms. Both defendants were
interviewed and had the opportunity of making an offer to
purchase. If Mr Mweemba offered to purchase for the sum of
K20,000 as far back as 1967 there was nothing to prevent him
from repeating such offer. In any event, the plaintiffs reserved
the discretion to accept or reject whatever they pleased and the
correspondence indicates that AFC did not consider that Mr
Mweemba at least could handle a large acreage. I can see
nothing inequitable in the circumstances of the sale of the
property.
As to the alleged forceful eviction, subsequent to an eviction
notice, which Mr Jere denies, it was not alleged or proved that
the plaintiffs were party thereto. In my judgment Mr Mweemba’s
licence terminated on sale of the farm to Mr Jere. I do not see
that Mr Hangoma’s position was ever supported by any licence.
I cannot see that either defendant is now in legal possession of
the farm and the claim for possession does not lie against them.
I order however that the caveat lodged by the defendants be
removed from the Register.
(g) Land Lord and Tenant – Control of Common Parts retained

by Landlord - Duty to Maintain and repair - Covenant for
repairs – extent of obligation – Covenant for quiet
enjoyment
In Zimco Properties Ltd v. Hickey Studios Ltd and Marryat and

Scott (Z) Ltd,80 the appellant company leased to the first respondent the
twenty-second floor in a high rise block of offices in multi-occupation.
Access to the various floors by the tenants, their customers and invitees
were by means of staircases and three passenger lifts which were not
themselves leased to any individual tenant. As a result of frequent
breakdowns of the lift services, the first respondent lost business and
finally gave it all up. The High Court awarded damages in favour of the
first respondent for breaches of the covenant for quiet enjoyment and
repairs. On appeal to the Supreme Court it was held that:
1. The fact that a tenancy concerns a high rise block of offices or
any similar tall building demands that there be some contractual
80
(1988 - 1989) ZR 181.
obligation on the landlord to maintain the facilities retained under

his control in a state of repair so that the easement impliedly
granted to the tenants over these means of access would permit
their use and enjoyment.
2. Liability to a tenant must relate to the landlord’s obligation, not
to the public but to the tenant himself.
3. A landlord’s obligation is not to guarantee constant availability
of the facilities but to take reasonable care and to carry out
necessary repairs and maintenance.
4. Landlords are not liable in damages to the tenant under the
covenant of quiet enjoyment when they had in no way actively
participated in causing the breakdowns which in the main were
caused by the various tenants and their invitees.
NGULUBE, DCJ: For convenience, we will refer to the appellant as the

landlord and the first respondent as the tenant. This is an appeal
by the landlord against the decision of a High Court judge on the
question of liability and the amount awarded as damages in favour
of the tenant for alleged breaches of the covenants for quiet
enjoyment and for repairs. The tenant has cross-appealed on
the question of damages. The landlord own an imposing high
rise block of offices known as Findeco House which is multi-
occupied by various tenants. It is the lifts in that building which
gave rise to this litigation. The landlord leased the twenty-second
floor to the tenant for the purpose of running a restaurant called
Studio 22 which also served as a discotheque. Access to the
various floors by the tenants, their customers and invitees is by
means of stair cases and three passenger lifts. There is also a
service lift and an executive lift not available for use by the
general public. The lifts broke down continually before as well
as after the tenant took occupation, which was in August, 1979.
One or two lifts, and at times all the lifts, would break down and
there would be no lift service at all on certain days. It was
common ground that the lift service was, to put it mildly, erratic.
Quite understandably, the tenant’s customers were reluctant to
walk up and down twenty-two floors for their meals and dances.
The tenant lost business and finally gave it all up in June, 1983
when he vacated the premises. For the purpose of maintaining
the lifts, the landlord employed a firm of specialists under contract,
the second respondent - who were on call twenty-four hours a
day to attend to, among other things, the frequent breakdowns.
There was evidence that 85% of abuse causing the breakdowns
occurred due to gross overloading, and the rest shared between
vandalism, fluctuations in the electricity current supplied, wear
and tear, and so on. The difficulty of obtaining foreign exchange
for spare parts added to the general deterioration in the lift service
and prevented expeditious or thorough repair work. There was
opinion evidence from the specialists that the number of lifts
were inadequate for the population of occupants and visitors
who frequently overloaded the lifts resulting in breakdowns. Both
the landlord and the tenant attempted to address this problem by
providing lift attendants to control the number of persons getting
into the lifts.
The tenant sued the landlords who sought indemnity from
the second respondent. The tenant alleged that the landlords
were in breach of covenants to be implied in the tenancy for the
maintenance of the lifts in a constant state of repair and in breach
of the covenant for quiet enjoyment by reason of the failure to
constantly provide an adequate lift service. The landlord denied
being under any obligation to keep the lifts in constant repair or
to have been in breach of either covenant. They also joined the
specialists to the action as third parties to indemnify them should
the Court find for the tenant.
The landlord also sought to show that most of the breakdowns
were occasioned by this tenant’s teenage patrons who overloaded
the lifts and damaged various things in them. The learned trial
judge found that the landlord were under obligation to maintain
the staircase and the lifts which were the common parts of the
building still under their care and control. She also found that the
landlords’ evidence had not established that the tenant’s
customers caused most of the breakdowns although all the
breakdowns occurred during the weekends - and there were
many which occurred when only the tenant’s employees and
customers were using the lifts. The argument was that the
landlord had not succeeded in pinpointing the actual causes of
such breakdowns although this reasoning is difficult to follow
when the specialists’ evidence was that overloading was the
cause and examples were given when drunken teenagers who
had crammed the lift had to be rescued from there. However,
the learned trial Judge found that the lifts were overworked by
all the tenants and their invitees; that the building was in any
case underlifted:, and that the opening of Studio 22 increased
the volume of traffic for the lifts rendering them more vulnerable
than was the case before. In finding for the tenant, the learned
trial judge had this to say:
The evidence of PW1 shows that he was aware

of the erratic situation of the lifts at the time that
he entered into the tenancy agreement and as such
the question of inducement did not arise. He cannot
therefore, claim that he was induced to enter into
this agreement by the defendant. On breach of
the covenant for quiet enjoyment of the demised
premises, I find that the defendant company knew
that the plaintiff’s business of a restaurant would
attract a lot of people who would increase traffic
for the lifts service, and that such an increased
traffic would worsen the situation and the services
of the lifts which were already erratic. The
defendant company was therefore taking on an
extra load for which they required to prepare
themselves. The defendant company was obliged
to see to it that the third party obtained the
necessary spare parts at all times so that the repairs
could be carried out constantly. There is no
evidence that the third party was informed of the
plaintiff’s intention to open the restaurant on the
22nd floor or that the third party was asked to double
their efforts to make certain that the lifts were
always in working order. To the extent that the
defendant company failed to do something extra
or to make an extra effort in running the lift service
for the use of the plaintiff, their clients and agents,
the defendant company was in breach of the
covenants to afford the plaintiff quiet enjoyment
of the premises, and access thereto.
The learned trial Judge considered that, although the staircase

was always available, it would be unrealistic and unreasonable
to expect diners to climb twenty-two floors and that the tenant’s
known interest could only be served by use of the lifts. With this
observation, we are in general agreement. But the learned trial
Judge went on to hold that, in those circumstances the landlord
was obliged to maintain the lift service in a state of constant
repair and that this they failed to do. Damages were awarded in
the sum of K200,000. The landlord’s own claim against the
specialist maintenance firm was dismissed because the learned
trial Judge found that they were not negligent; they were skilled
and promptly attended to all breakdowns and that they repaired
the lifts whenever spare parts were available. All the foregoing
findings were in issue in this appeal and we shall be alluding to
them.
This case is of general importance to landlords and tenants
of skyscrapers in multi-occupation where the common parts,
such as stairs and lifts, have not themselves been leased to any
individual tenant. The first question is whether an obligation on
the part of the landlord to maintain the stairs and lifts can be
implied in the absence of specific provisions to that effect in the
tenancy agreement. In the instant case, there was not even any
written lease operative at the time. For the detailed reasons
discussed by the law lords (and by Lord Denning in the Court of
Appeal) in Liverpool City Council v. Irwin and another,81 it is
both reasonable and necessary for the court to imply such an
obligation. The relationship of landlord and tenant between the
parties entailed that the tenants must of necessity enjoy, among
other easements, the right of access to their floors using the
stairs or lifts. These are not just conveniences provided at
discretion but essentials of the tenancy without which no
occupation could be possible. The fact that a tenancy concerns
a high rise office block or any similar very tall building demands
that there be some contractual obligation on the landlord to
maintain the lifts and stairs retained under his control in a state
of repair so that the easement impliedly granted to the tenants
over these means of access would permit their use and enjoyment
of the various floors. The ground of appeal which criticised the
finding that there was to be implied such an obligation cannot be
entertained.
The major ground of appeal concerned the nature and extent
of such obligation. Mr Muyenga relied on the Liverpool case in
which it was held that the obligation to repair the lifts in a high
rise block of dwellings was not an absolute one and did not exceed
what was necessary or reasonable. Having regard to the
particular circumstances; that it was subject to the tenants own
responsibilities and was related to what reasonable tenants should
do for themselves. Accordingly, the obligation to be implied was
one to take reasonable care to maintain the common parts (which
81
[1976] 2 All ER 39.
were in that case the stairs, the lifts and the lighting on the stairs)
in a state of reasonable repair and efficiency. In other words,
the decision there was that the landlord owed the tenants no
more than the common duty of care and the corporation was
found not by hooligans against whom the corporation, despite
their very determined effort, fought a losing battle. The learned
trial Judge’s attention was drawn to the Liverpool case but
despite citing it, she found that the obligation was one to keep
the lifts in constant repair and for the reasons stated in the passage
from her judgment which we have quoted, she found for the
tenant. It is plain that in effect, the learned trial Judge considered
that the obligation was an absolute one. Certainly no account
seems to have been taken of the arrangement to employ
specialists; nor of the latter’s brave efforts on behalf of the
landlords; nor of the commonest cause of the frequent
breakdowns, namely gross abuse of the lifts by overloading on
the part of all or some of the tenants, and their invitees. Mr
Muyenga argued to the effect that, as the landlords had employed
specialists who were always on call and who always responded
to the breakdowns, including the many caused by overloading,
the landlords were not in breach of the common duty of care to
take such reasonable steps as were necessary to maintain the
lifts. Mr Mitchley argued that the Liverpool case was
distinguishable and that, in any case, the particular tenant was in
a special category because the restaurant business was different
from the others which were mere offices and the workers could
afford to walk up and down the stairs or to wait for lengthy
periods for a lift to arrive. Diners, on the other hand, could not
be expected to walk up twenty-two floors or to wait for so long
for a lift, if one was available. In the circumstances, it was his
submission that the landlords were obliged to make sure that the
restaurant business worked; which meant that the lifts had to be
operational all the time. He suggested that, since overloading
was the main problem, the landlord could have placed men at
the lifts to control such overloading and argued that the fact that
the tenant gratuitously endeavoured such an exercise -without
much success - did not shift liability for taking all these necessary
steps to the tenant. Mr Mitchley argued very vigorously for the
finding that there was here not just a breach of covenant for
repair and maintenance but an obligation for quiet enjoyment
which raised absolute liability. The submission was that as the
provision of lifts was essential to the running of a restaurant,
failure so to provide for whatever reason was a breach of the
covenant for quiet enjoyment.
We have given anxious consideration to all these arguments
and submissions. We can find no authority for the proposition, in
effect, that the obligation of a landlord and his liability should
differ according to whether the business carried on depends on
patronage by members of the public or mere attendance by staff.
Liability to a tenant must, in our considered opinion, relate to the
landlord’s obligation, not to the public but to the tenant himself.
We also do not agree that the Liverpool case is distinguishable;
the principles discussed in that case, especially Lord Denning’s
views in the Court of Appeal and their Lordships’ opinion in the
House of Lords, are, we consider, of general application and
apply here, since we find, respectfully, that we are in agreement
with those views. There is nothing in the discussion of the basic
principles to confine that case to lifts in residential blocks of flats
only. The landlord, even of a tall office block, has not an absolute
obligation, let alone an absolute liability, in regard to repair and
maintenance of lifts. There can be no question of a landlord’s
absolute liability without some fault nor can there be implied any
absolute warranty that the lifts will always work or will be kept
working constantly, as suggested by the learned trial Judge. On
such a suggestion, it would seem that every landlord of a tall
building whose tenants depend on the public’s patronage for their
business would be turned into an insurer in respect of the vagaries
of lifts. The nature and extent of the landlord’s obligation appears
to have been given a novel and unwarranted dimension extending
far beyond the common duty of care and without reference to
other causes of the breakdown, nor any credit for the fact that
the landlords did actually try very hard through a specialist firm,
to perform their obligation. In order for the tenant to succeed, it
had to be shown that the landlords failed to take reasonable
care. In this regard, the fact that all the tenants had their own
responsibility not to abuse the lifts cannot be ignored. The
employment of specialists on call twenty-four hours a day could
not be ignored either, in deciding whether these landlords had
failed to take reasonable care. A notion of absolute liability or
warranty would produce absurd results. Thus, if, for instance,
the tenant’s own teenage patrons caused a breakdown by
overcrowding the lifts in disregard of instructions as to the number
of passengers and the lifts were out of order for a prolonged
period because of lack of spare parts, the landlord would be
liable for the actions of those for whom they are not responsible.
If other tenants overloaded the lifts - ‘like a minibus’ was how
one witness put it - the landlords would pay damages to them if
they lost the custom of the members of the public. A claim of
absolute liability or absolute warranty in such a case and without
regard to the facts and circumstances or fault does not accord
with any known notions of justice or fairness. Another example
of the strange results may be given. Although Ormord, LJ in the
Liverpool case in the Court of Appeal was opposed to implying
the obligation to repair, he did illustrate the possible absurdities
when he said, at page 676:
An implied covenant to keep a stairway reasonably

safe is one thing, an implied covenant to keep it in
good repair is quite another. Under the former, the
landlord would be liable in damages for personal
injuries; under the latter, he would be liable to be
sued in contract for damages for inconvenience,
discomfort and so on under such cases as Jackson
v. Horizon Holidays Limited. Moreover, every
time somebody removed or broke the lights on the
staircase he would be in breach of covenant.
Counsel for the defendants next moves on to the
lifts, arguing that if there is an implied obligation to
keep the stairway in good repair there must be a
similar covenant in respect of the lifts, so that every
time somebody put the lifts out of order by breaking
the control panel or in some other way, the landlord
would be in breach of covenant and liable to be
sued by every tenant in the block for damages for
inconvenience, no matter how hard he tried to keep
the lifts in working order. Then the rubbish chutes
- every time a tenant puts a mattress or some other
large object down the chute, the landlord would be
in breach of his covenant to maintain the chutes in
working order, with similar, though perhaps less
costly, consequences.
Whilst we do not agree that the illustrations support a case for

declining to imply an obligation, we consider them to be good to
support the case against absolute liability without fault and in
favour of the necessity to investigate the facts and circumstances
to see if the landlord did in fact fail in his common duty to take
reasonable care.
As can be seen from the passage which we have quoted
from the judgment below, the learned trial Judge was at pains to
justify the findings of liability by stretching the nature and extent
of the obligations to be implied by requiring the landlord to ‘take
any extra measures’ to cope with the increased volume of traffic
and ‘to see to it that the third party obtained the necessary spare
parts at all times’; in addition, to ask the third party ‘to double
their effort’ to ensure that the lifts were always working. It was
the alleged failure to do these extra things which the learned
trial Judge found justified a judgment in favour of the tenant.
For our part, we do not agree that the common duty of care can
be stretched so far or that the court is entitled to frame an implied
obligation in such sweeping terms, let alone to fail to evaluate
the duty of care in relation to the actual facts and circumstances
on both sides of the case, including the causes of the breakdowns
complained of.
It is apparent that we are satisfied that the landlords’
obligation was not to guarantee constant availability of the lifts
but to take reasonable care and to carry out necessary repairs
and maintenance. Such obligation related to the maintenance of
the existing lifts and could not extend to requiring the landlords
to install new or additional lifts to cope with the increase in
traffic nor, as Mr Mitchley proposed, to the provision of constant
supervision by the landlords of the tenants and their invitees. A
reasonable set of tenants and invitees must play their part too.
Can a landlord still be in breach of his common duty of care as
an occupier of the common parts, such as lifts, when he has
employed a firm of skilled and competent specialists who are on
call at any hour, day or night? We think not. In many of the
precedents that we have come across, landlords who have
employed competent contractors have been held not liable for
injuries to plaintiffs coming upon those parts of their premises
maintained on their behalf by such specialists. In most cases,
rather, it is the specialists, if negligent, who are liable to the
injured parties: see, for example, Haseldine v. C-A Daw &
Sons and another: 82 Green v. Fibre Glass Limited, 83 and
similar cases. There can be no doubt in the case at hand that the
landlords acted reasonably in entrusting the task of maintaining
82
[1941] 3 All ER 156.
83
[1958] 2 QB 245.
the lifts to a specialist firm. They did not fail to discharge their
common duty of care. We are mindful that Mr Mitchley argued
very forcefully that the landlords were in breach of the implied
covenant for quiet possession as opposed to one for repair or
maintenance so as to justify strict liability. He even cited some
cases where there was deliberate or active interference,
disturbance or invasion to the tenant’s quiet use and enjoyment
or some deliberate omission. None of these cases could possibly
apply here and the obligation under discussion could not relate
to quiet enjoyment. In the Liverpool case, Denning in the Court
of Appeal said at page 663:
COVENANT FOR QUIET ENJOYMENT
Counsel for the tenants conceded that there was

no breach by the corporation of the implied
covenant for quiet enjoyment. He was quite right
to make that concession. This covenant extends, I
think, so as to protect the tenant in his possession
and enjoyment of the demised premises from any
invasion or those claiming through him: Browne v.
Flower, Kenny v. Preen. But here there was
nothing done by the landlord which amounted to
an invasion, interruption or disturbance of the
tenant. Failure to repair the demised premises, or
the common parts, cannot be said to be a breach
of the covenant for quiet enjoyment.
We respectfully agree with Lord Denning. In
any event, even had interruptions to the lift service
due to breakdown been a breach of the covenant
for quiet enjoyment, we would have applied the
reasoning in Malzy v. Eichholz84 and found that
the landlords are not liable in damages to the tenant
under the covenant of quiet enjoyment when they
had in no way actively participated in causing the
breakdowns which in the main were caused by
the various tenants and their invitees.
We are not without some sympathy for the
tenant but the decision below, on the issue of liability,
cannot be allowed to stand. The cross-appeal and
the discussion on damages are now irrelevant. The
84
[1916] KB 308.
appeal is allowed; The judgment below is reversed
and judgment entered for the landlord…
In Liverpool City Council v. Irwin and Another,85 a local

corporation was the owner of a tower block which contained
some seventy dwelling units. Access to the various units was
provided by a common staircase together with two electrically
operated lifts. The tenants were provided with an internal chute
into which they could discharge rubbish and garbage. In July
1966 the appellants, who were husband and wife, became the
tenants of a maisonette on two floors of the block. The tenancy
agreement incorporated a list of obligations imposed on tenants
but contained nothing concerning the obligations of the
Corporation. Over the course of years the condition of the
block deteriorated very badly, partly in consequence of the
activities of vandals and the lack of co-operation on the part of
tenants. The defects in the common parts of the block included
the following:
(i) continual failure of the lifts,
(ii) lack of proper lighting on the stairs and
(iii) blockage of the rubbish chutes.
In addition, the lavatory cisterns in the block had been designed
and constructed so badly that they overflowed causing damage
to the property. The appellants together with other tenants
protested against the condition of the block by refusing to pay
rent to the Corporation. The Corporation sought an order for
possession of the appellants’ premises and the appellants
counterclaimed against the Corporation alleging, inter alia, a
breach on the part of the Corporation of its implied covenants
for the appellants’ premises and the appellants counterclaimed
against the Corporation alleging inter alia, a breach on the part
of the Corporation of its implied covenants for the appellants’
quiet enjoyment of the property. The trial Judge granted the
Corporation an order for possession against the appellants but
held:
(i) that the Corporation was under an implied covenant to
keep the common parts in repair and properly lighted,
(ii) that the Corporation had in breach of that implied
covenant together with the covenants implied under s.
32 (1)a of the Housing Act 1961 and
(iii) that accordingly the appellants were entitled to £10
damages on their counterclaim.
85
(1976) 2 All ER 39.
The Court of Appeal allowed an appeal by the Corporation,

holding, by majority, that there was no implied covenant on the
part of the Corporation to repair the common parts of the block
and, unanimously, that the Corporation was not in breach of the
covenants implied under section 32 (1) of the 1961 Act. On
appeal to the House of Lords, it was contended, inter alia, for
the appellants that there was an implied obligation on the
Corporation to keep the staircase and corridors of the block in
repair and the lights in working order, and that the Corporation
was in breach of the obligation.
It was held by the House of Lords that since the use of the
stairs, lifts and rubbish chutes was necessary for the tenants
occupying dwellings in the block, the appropriate easements, or
rights in the nature of easements, were to be implied into the
tenancy agreements. Furthermore, although it was not open to
the court to imply terms which it thought were reasonable, the
subject-matter of the agreement, i.e a ‘high-rise block’ in multiple
occupation, and the nature of the relationship of landlord and
tenant, of necessity required the implication of a contractual
obligation on the part of the Corporation with regard to those
easements. The obligation was not, however, an absolute one
and did not exceed what was necessary or reasonable, having
regard to the particular circumstances, moreover, it was subject
to the tenants’ own responsibilities and was related to what
reasonable tenants should do for themselves. Accordingly the
obligation to be implied was one to take reasonable repair and
efficiency. It had not, however, been shown that the Corporation
had failed to take reasonable care, and therefore, so far as it
related to failure on the part of the Corporation to maintain the
common parts, the appeal was dismissed.
5.8 Summary of Chapter Five

leases and licenses.
The leasehold estate ensures that both the landlord and tenant
retain a proprietary right in the land. The essential qualities of a
lease are that it gives a person the right of exclusive possession
of property, for certain term at a rent (Street v. Mountford,
Bobat v. Kapindula), although the last of these is not strictly
necessary. A lease may be terminated by; expiration of time; by
forfeiture, by notice, by merger, by surrender, by disclaimer, by
frustration and by repudiatory breach of contract.
A licence is a permission to use land belonging to another
which, without such permission, would amount to trespass. A
licence, like a lease, is one way in which a person may enjoy
some right or privilege over the land of another. The traditional
view of licences is that they are not proprietary in nature. As
Vaughan, CJ made it clear in Thomas v. Sorell, the traditional
analysis of licenses is that they ‘properly passeth no interest nor
alter or transfer property in anything.’ In other words, a licence
is not an interest in land, but rather a right over land that is
personal to the licensor and licensee. As a result generally the
right conferred can be enforced only against the person who
created it. A licence, unlike an easement, cannot be enforced
against a purchaser of the land over which it exists. The licence
is generally a matter of contract, not property law and is incapable
of binding ‘third parties’. It must be pointed out, however, that
this fundamental theoretical distinction between ‘interests in land’
and ‘licences’ has been attacked in relation to contractual licences
and licences protected by estoppels. This has been noted or
seen from some cases cited herein, Errington v. Errington,
Binions v. Evans and Tanner v. Tanner.
It is of vital importance to be able to distinguish licences and
easements as well as licences and leases. A licence is merely
personal and does not run with the land. A licence may be given
to any person for any lawful purpose not only to someone who
owns land. A licence does require a dominant tenement. In this
case a licence differs from an easement. The distinction between
a lease and licence has been extensively discussed in this chapter
and has been illustrated and/or exemplified by the cases of
Chilufya v. Kitwe City Council and Street v. Mountford
excerpted in this chapter.
Chapter Six
MORTGAGES
6.0 Introduction
A mortgage was defined by Lord Lindley in Santley v. Wilde,1

as a conveyance of land or an assignment of chattels as security
for the payment of a debt or the discharge of some other
obligation for which it is given. The security is redeemable on
the payment or the discharge of some other obligation,
notwithstanding any provision to the contrary. Section 65 of the
Lands and Deeds Registry Act 2 has somewhat altered the
common law nature of a mortgage as defined by Lord Lindley
in Santley v. Wilde. Section 65 (1) provides that a mortgage is
simply to operate as a security and not a transfer or lease of the
estate or interest thereby mortgaged. The section provides that:
1. A mortgage of any estate or interest in land

shall have effect as security and shall not
operate as a transfer or lease of the estate or
interest thereby mortgaged, but the mortgagee
shall have and shall be deemed always to have
had the same protection powers and remedies
(including a power of sale, the right to take
proceedings to obtain possession from the
occupiers and the persons in receipt of rents
and profits or any of them and, in the case of
land held in leasehold, the right to receive any
notice relating to the land the subject of the
mortgage which under any law or instrument
the mortgagor is entitled to receive) as if the
mortgage had so operated as a transfer or lease
of the estate or interest mortgaged.
6.1 The Nature of a Mortgage as a Contract and as an

Interest in Land
A mortgage, like a lease, originates in a contract. The borrower

of money (the mortgagor) will enter into a binding contract with
1
[1899] CH at p. 474.
2
the mortgagee (the lender) whereby a capital sum will be lent

on the security of the property owned by the mortgagor. As a
contract the parties are at liberty to stipulate whatever terms
they wish for the repayment of the loan, the rate of interest and
so forth.
Although a mortgage originates in a contract and partakes
of many of the features of a contract, it also, like a lease,
constitutes a proprietary interest in the land. The mortgagee
obtains an estate in the land and the borrower retains an equity
of redemption which encapsulates his residual rights in the
property.3
Dixon has observed that the proprietary nature of a mortgage
brings with it the intervention and attention of equity and that
this can result in a conflict between the mortgage as an interest
in land and the mortgage as a creation of a contract.4
6.2 Types of Mortgages
There are two types of mortgages, namely, legal and equitable

mortgages.
6.2.1 Legal Mortgage
A legal mortgage is a mortgage created in respect of a legal

estate by deed of legal mortgage or legal charge.
6.2.2 Equitable Mortgage
An equitable mortgage may be created in the following ways:

(a) By deposit of title deeds. A deposit of title deeds creates an
equitable mortgage provided it could be shown that the land
was intended to be treated as security for a loan. Coote on
mortgages has observed thus:
A deposit of title deeds by the owner of freeholds

or leaseholds with his creditor for the purpose of
securing either a debt antecedently due, or a sum
of money advanced at the time of the deposit
operates as an equitable mortgage or charge, by
virtue of which the depositee acquires, not merely
3
4
Ibid.
MORTGAGES 163
the right of holding the deeds until the debt is paid,
but also an equitable interest in the land itself.5
In relation to the creation of equitable mortgages, the learned

authors of Halsbury’s Laws of England have observed thus:
A mere deposit of title deeds upon an advance,

with intent to create a security thereon but without
a word passing gives an equitable lien so that as
between a debtor and creditor, the fact of
possession of the title deeds raises the presumption
that they were deposited by way of security.6
The learned authors of Megarry’s Manual of the Law of Real

Property have observed thus in relation to equitable mortgages:
…equity treats an enforceable contract to create

a legal mortgage as an actual mortgage, provided
it is supported by sufficient evidence in writing or
a sufficient act of part performance. Similarly, an
imperfect legal mortgage satisfying these
requirements is treated as an agreement for a
mortgage and thus an equitable mortgage. …since
17837 the rule has been that a mere deposit of the
title deeds which cannot be accounted for in any
other way is taken as part performance of a
contract to create a legal mortgage, even if not a
word about such a contract has been said; such a
deposit thus creates an equitable mortgage the
deposit must be made for the purpose of giving
security…8
In practice, where an equitable mortgage is created by deposit

of title deeds, there is usually some memorandum accompanying
the deposit setting out the terms of the mortgage. The
memorandum may require the mortgagor when so requested to
execute a legal mortgage.9
(b) Mortgage of an equitable interest. If the potential mortgagor
only has an equitable interest in the land as opposed to a
5
Leigh, R., Coote’s Treatise on the Law of Mortgages (9th ed.), vol. 1. London: Stevens and Sons Ltd (1977),
p. 86.
6
3rd ed., vol. 27 Butterworth and Co. Publisher, (1955), p. 168, Para 263.
7
Since the decision in Russel v. Russel [1783] 1 Bro. CC 269.
8
Hayton, D., Megarry’s Manual of the Law of Real Property (6th ed.). London: ELBS (1982), p. 468 - 469.
9
Ibid.
legal estate, it follows, necessarily, that any mortgage of

that equitable interest will itself be equitable. For example,
beneficiaries under a trust have a mere equitable interest
and can only create equitable mortgages.10
6.3 The Rights of the Mortgagor
The dual nature of a mortgage as a contract and as an interest

in land means that the mortgagor has rights arising under the
contract of loan and from the protection which a court of equity
offers a mortgagor due to the proprietary interest they retain in
their property.11 The rights of the mortgagor are discussed below.
6.3.1 The Contractual Right to Redeem
Once a mortgage has been created there will normally be a

contractual date set for repayment of the loan; this is known as
the legal redemption date. At common law if the monies were
not repaid on the legal redemption date, the property vested in
the mortgagee. This was unfair and so equity intervened and
created the equitable right to redeem i.e., it gave the mortgagor
the right to redeem the property even after the legal redemption
date had passed.12
6.3.2 The Equitable Right to Redeem
Equity allowed the mortgagor an equitable right to redeem on

any date after the date fixed for redemption. Equity took the
view that the property mortgaged was merely a security for the
money lent and that it was unjust that the mortgagor should lose
his property because he was late in repaying his loan.13 Equity
compelled the mortgagee to reconvey the property to the
mortgagor on payment of the principal with interest and cost
even if the legal date of redemption had passed.14 In Salt v.
Marques of Northampton, Lord Bramwell described the
equitable right to redeem thus:
it is a right not given by the terms of the agreement

between the parties to it, but contrary to them, to
have back securities given by a borrower to a
10
Ibid., at p. 468.
11
Supra note 3, at p. 225
12
Supra note 8, at p. 462; see also speech of Viscount Haldane, LC in G and C Kreglinger v. New Patagonia
Meat and Cold Storage Company Limited [1913] AC 25.
13
Ibid.
14
Ibid.
MORTGAGES 165
lender, I suppose one may say by a debtor to
creditor, on payment of principal and interest at a
day after that appointed for payment when by the
terms of the agreement between the parties the
securities were to be the absolute property of the
creditor.15
6.3.3 The Equity of Redemption
The equity of redemption represents the sum total of the

mortgagor’s rights (in equity) in the property which is subject to
the mortgage. The equity of redemption is the mortgagor’s right
of ownership of the property subject to the mortgage,16 and is
an interest in land which can be dealt with like any other interest
in land.17
The equity of redemption differs from the equitable right to
redeem in that the latter does not exist until the legal date of
redemption is past, whereas the equity of redemption exists as
soon as the mortgage is made.18 The equitable right to redeem
is one of the adjuncts of the equity of redemption.19
6.3.4 Equitable Principles Applicable to Mortgage Transactions
In G and C Kreglinger v. New Patagonia Meat and Cold

Storage Company Limited,20 Lord Parker attempted to sum
up the equitable principles applicable to mortgage transactions.
His Lordship observed and commented thus:
My Lords, I desire, in connection with what I have

just said, to add a few words on the maxims in
which attempts have been made to sum up the
equitable principles applicable to mortgage
transactions. I refer to the maxims, ‘once a
mortgage, always a mortgage,’ or ‘A mortgage
cannot be made irredeemable.’
It is a fundamental principle of the law of mortgages that ‘once

a mortgage, always a mortgage’ even if this contravenes the
15
1892] AC 1, at p. 18.
16
Re Wells [1933] CH 29 at, p. 52.
17
18
G and C Kreglinger v. New Patagonia Meat and Cold Storage Company Limited [1913] AC 25.
19
Supra note 11.
20
[1913] AC 25, at p. 53.
terms of the contract between the parties.21 The mortgagor’s

right to redeem the mortgaged property or his ‘equity of
redemption’ as it is termed is a necessary incident to every
mortgage and cannot be clogged or fettered.22 The borrower
has the right to have their property returned in full once the loan
secured on it has been repaid. A mortgage transaction should
not be seen as an opportunity for the mortgagee to acquire the
mortgagor’s property and for this reason the court of equity will
intervene to protect the mortgagor and their equity of redemption
against encroachment by the mortgagee.23 This protection
manifests itself in various ways which are discussed below.
6.3.4.1 Exclusion of The Right to Redeem
The right to redeem is inviolable and shall not be interfered with.

Any provision preventing a mortgagor from recovering his
property after performance of his obligation, is repugnant to the
nature of the mortgage transaction. This is illustrated in the
maxims of equity ‘once a mortgage always a mortgage’ and
that there shall be ‘no clog or fetter on the right to redeem.’
In Samuel v. Jarrah Timber,24 a limited company borrowed
money upon the security of their debenture stock subject to the
lender having the option to purchase the stock at 40 per cent
within twelve months; the loan to become due and payable with
interest at thirty days’ notice on either side. Within twelve months
before the company gave notice of their intention to repay the
loan, the lender claimed to purchase the stock at the agreed
price. It was held that the option was void and that the company
was entitled to redeem the loan on payment of the principal,
interest and costs. In his speech Lord Lindley observed and
commented thus:
The doctrine, ‘Once a mortgage always a

mortgage,’ means that no contract between a
mortgagor and a mortgagee made at the time of
the mortgage and as part of the mortgage
transaction, or, in other words, as one of the terms
of the loan, can be valid if it prevents the mortgagor
from getting back his property on paying off what
is due on his security. Any bargain which has that
21
Supra note 3, at page 218.
22
See Salt v Marquis of Northhampton, supra note 15.
23
24
[1904] AC 323.
MORTGAGES 167
effect is invalid and inconsistent with the transaction
being a mortgage.25
Once a mortgage has been executed any separate and

independent transaction giving an option to purchase may be
valid provided it does not defacto form part of the mortgage.26
6.3.4.2 Postponement of The Right to Redeem
A provision postponing the date of redemption may be valid

provided that the mortgage as a whole is not so oppressive and
unconscionable that equity would not enforce it.27 In Fairclough
v. Swan Brewery Co. Limited,28 a lease of seventeen and a
half years was mortgaged on conditions which prevented its
redemption until six weeks before the end of the term. This was
held to make the equitable right to redeem illusory and therefore
void. In contrast the House of Lords in Knights bridge Estates
Trust Limited v. Byrne, 29 held that a clause postponing
redemption for forty years was valid and binding, one of the
most important reasons being that the parties were large
commercial entities that had entered into a mutually enforceable
agreement after being advised.
6.3.4.3 Collateral Advantages
A covenant is collateral where an obligation is placed on the

mortgagor which is independent of that of the performance of
which the land is charged. Such clauses are objectionable only
if they are unconscionable or if they constitute a clog on the
right to redeem. 30 In Noakes v. Rice, 31 a clause that the
mortgagor would not sell any beers other than those of the
mortgagees in his public house for the twenty-six years of the
mortgagor’s lease was held to be oppressive. In contrast in Biggs
v. Hoddinott,32 where on similar facts but for a period of five
years, the clause was deemed to be valid.
In G and C Kreglinger v. New Patagonia Meat and Cold
Storage Company Limited, the House of Lords held that:
25
Ibid., at p. 329.
26
Reeve v. Lisle [1902] AC 461.
27
William, H., Land Law. London: Sweet and Maxwell (1994), p. 79.
28
[1912] AC 565.
29
[1939] CH 441, (1938) All ER 618.
30
Supra note 26.
31
[1902] AC 2, CH 307.
There is now no rule in equity that a mortgagee

cannot stipulate in the mortgage deed for a
collateral advantage to endure beyond redemption,
provided that such collateral advantage is not either
(1) unfair and unconscionable, or (2) in the nature
of a penalty clogging the equity of redemption, or
(3) inconsistent with or repugnant to the contractual
or equitable right to redeem.33
6.3.5 Rights of Mortgagee34
Where a mortgagor defaults under the terms of the mortgage,

the mortgagee is given various remedies, viz.: sale, foreclosure,
taking possession, appointment of a receiver and suing on a
personal covenant.
Real Property have, in relation to mortgagee’s remedies,
observed thus:
A mortgagee is not bound to select one of the above

remedies and pursue that and no other; subject to
his not recovering more than is due to him, he may
employ any or all of the remedies to enforce
payment. Thus if he sells the property for less than
the mortgage debt, he may then sue the mortgagor
upon the personal covenant for payment; and this
is so even if the sale was by the court and the
mortgagee, bidding by leave of the court, has
purchased the property.35
Two of the mortgagee’s remedies are derived from the common

law (an action on the covenant, and the right to take possession),
one is equitable (foreclosure) and two were formerly contractual
and are now statutory (sale and appointment of receiver).36
6.3.6 Sale
The mortgage deed will usually confer a power of sale. There

is a statutory power of sale given under the Conveyancing and
32
[1898] 2 CH 307.
33
[1913] AC 25.
34
See generally supra note 8, pp. 472-485.
35
Ibid., at p. 484.
36
Ibid.
MORTGAGES 169
Law of Property Act, 1881. Every mortgage whose provision
shows no contrary intention has a power of sale provided it is a
mortgage under deed and the mortgage money is due. The
statutory power of sale is exercisable without any order of the
court being required. Section 20 of the Conveyancing and Law
of Property Act provides for circumstances or conditions
precedent before the statutory power of sale may arise or be
exercised. The section provides:
A mortgagee shall not exercise the power of sale

conferred by this Act unless or until:
(1) notice requiring payment of the mortgage
money has been served on the mortgagor or
one of several mortgagors and default has
been made in payment of the mortgage
money, or of part thereof, for three months
after service; or
(2) some interest under the mortgage is in arrears
and unpaid for two months after becoming
due; or
(3) there has been a breach of some provision
contained in the mortgage deed or in this Act
and on the part of the mortgage, or of some
person concurring in making the mortgage,
to be observed or performed, other than and
besides a covenant for payment of the
mortgage money or interest thereon.
Most mortgage deeds do expressly exclude the application of

section 20 of the Coveyancing and Law of Property Act and in
its place provide for shorter period of default, say one month
before the power of sale can arise.37
Section 66 of the Lands and Deeds Registry Act38 deals
with the mortgagee’s power of sale. Section 66 (1) provides
that:
66. (1) A power of sale of the whole or any part

or parts of any property subject to a mortgage shall
become exercisable by a mortgagee if the
mortgage is made by deed and the mortgage money
37
See, for instance, the case of Investrust Merchant Bank v. Ebrahim Yousuf, SCZ/4/2004 excerpted under the
section dealing with case law.
38
payable thereunder has become due and the

mortgage is not redeemed before sale, and every
such power of sale shall be with and subject to the
powers and obligations and other provisions relating
to sales by mortgagees contained in the
Conveyancing and Law of Property Act, 1881, of
the United Kingdom, or any statutory modification
thereof applicable in Zambia, but neither the
Registrar nor any person purchasing for value from
such a mortgagee shall be bound or concerned to
see whether all or any of the provisions of that Act
have been complied with or whether any money
remains due under the mortgage.
The mortgagee is under legal duty to use reasonable care to

obtain the best possible price which the circumstances of the
case permit.39 A mortgagee cannot sell to himself.40 A mortgage
must obtain the true market value.41
6.3.7 Foreclosure
As pointed above under section 6.3.2, equity gave the mortgagor

an equitable right to redeem after he had lost his legal right of
redemption. ‘Foreclosure’ was the name given to the process
whereby the mortgagor’s equitable right to redeem was
extinguishable and the mortgagee left owner of the property
both at law and in equity.42 Foreclosure is the confiscation of
the mortgagor’s interest in the property. The right to foreclose
arises as soon as the legal date for redemption is past.
6.3.8 Possession
At common law the mortgagee’s right to take possession was

automatic because the mortgage gives a legal estate in possession
and is exercisable even if the mortgagor is not in default.43 A
mortgagee will not normally exercise his right until some default
has occurred which will enable him to exercise his power. Once
he takes possession, a mortgagee is liable to account (unless
39
Standard Charterd Bank v. Walker [1982] 3 All ER 938.
40
Tse Kwong lam v. Wongchit sen [1983] 1WLR 1349.
41
Cuckmere Brick Co. Ltd v. Mutual Finance Ltd [1971] 1 CHD 949.
42
43
Ibid., at p. 478 – section 65 of the Lands and Deeds Registry Act excerpted under section 6.0 has altered the
common law position. A mortgage does not operate as a transfer or lease of the estate or interest thereby
mortgaged.
MORTGAGES 171
taking of possession is to enable him effect a sale). He must
account not only for all that he receives, but also for all he ought
to have received.44
6.3.9 Appointment of Receiver
This is the appointment of a person with management powers

who may collect rents and profits and although appointed by the
mortgagee is in fact an agent for the mortgagor.45 Such a remedy
is most commonly used where the mortgagor has leased the
property and rents and profits can thereby be intercepted.
6.3.10 To Sue for Money After the Date Fixed for Payment
A mortgagee may sue for the money lent. This is like any other
contract where money is lent and there is default.46
6.4 Discharge of Mortgage
Once the monies and interest secured by a mortgage (legal

mortgage) have been paid, the mortgage has to be discharged.
Section 67 of the Lands and Deeds Registry Act47 provides
how the discharge of a mortgage should be effected. The section
provides that:
(1) Upon production of any memorandum by

endorsement on the mortgage or otherwise,
signed by the mortgagee and attested by a
witness discharging the land, estate or interest
from the whole or part of the principal sum
or annuity secured, or discharging any part
of the land comprised in such mortgage from
the whole or any part of such principal sum
or annuity, the Registrar shall make an entry
in the Register and on the outstanding
instrument of title, noting that such mortgage
is discharged wholly or partially.
(2) Upon such entry being made, the land, estate
or interest mentioned or referred to in such
memorandum shall cease to be subject to or
liable for such principal sum or annuity, or for
44
Ibid., at p. 479.
45
Ibid., at p. 473.
46
Ibid.
47
Supra note 38.
the part thereof noted in such entry as

discharged.
(3) The outstanding document creating the
mortgage so wholly or partially discharged
as aforesaid shall be surrendered to the
Registrar to be cancelled or part cancelled,
as the case may be, unless the Registrar sees
reasonable cause to dispense with such
surrender.
(4) A mortgage subject to a sub-mortgage shall
not be discharged, nor shall the terms thereof
be varied, nor shall the power of sale contained
or implied therein be exercised without the
consent in writing of the sub-mortgagee.
(5) The consent of the sub-mortgagee to the
variation of the terms of a mortgage shall
render the instrument making the variation
binding on him and on all persons who may
subsequently derive from him interest
in the mortgage.
6.5 Case Law
(a) Nature of a Mortgage - Meaning of a ‘Clog’ or ‘fetter’ on

A Mortgagor’s Equity of Redemption
SANTLEY v. WILDE [1899] CH 474
LINDLEY, MR: The question raised on this appeal is extremely important:

I do not profess to be able to decide it on any principle which will
be in harmony with all the cases; but it appears to me that the
true principle running through them is not very difficult to discover,
and I think that it can be applied so as to do justice in this case
and in all other cases on the subject that may arise. The principle
is this: a mortgage is a conveyance of land or an assignment of
chattels as a security for the payment of a debt or the discharge
of some other obligation for which it is given. This is the idea of
a mortgage: and the security is redeemable on the payment or
discharge of such debt or obligation, any provision to the contrary
notwithstanding. That, in my opinion, is the law. Any provision
inserted to prevent redemption on payment or performance of
the debt or obligation for which the security was given is what is
meant by a clog or fetter on the equity of redemption and is
MORTGAGES 173
therefore void. It follows from this, that ‘once a mortgage always
a mortgage’; but I do not understand that this principle involves
the further proposition that the amount or nature of the further
debt or obligation the payment or performance of which is to be
secured is a clog or fetter within the rule: see Powell on
Mortgages, 6th ed. pp. 116 et seq.: Title, ‘How a Mortgage is
considered in Equity.’ The right to redeem is not a personal right,
but an equitable estate or interest in the property mortgaged. A
‘clog’ or ‘fetter’ is something which is inconsistent with the idea
of ‘security’: a clog or fetter is in the nature of a repugnant
condition. If I convey land in fee subject to a condition forbidding
alienation, that is a repugnant condition. If I give a mortgage on
a condition that I shall not redeem, that is a repugnant condition.
The Courts of Equity have fought for years to maintain the
doctrine that a security is redeemable. But when and under what
circumstances? On the performance of the obligation for which
it was given. If the obligation is the payment of a debt, the security
is redeemable on the payment of that debt, that, in my opinion, is
the true principle applicable to the cases, and that is what is
meant when it is said there must not be any clog or fetter on the
equity of redemption. If so, this mortgage has no clog or fetter at
all. Of course, the debt or obligation may be impeachable for
fraud, oppression, or over-reaching: there the obligation is tainted
to that extent and is invalid. But, putting such cases out of the
question, when you get a security for a debt or obligation, that
security can be redeemed the moment the debt or obligation is
paid or performed, but on no other terms…
In Re Sir Thomas Spencer Wells 48 [Swinburne – Hanham v.

Howard], Lord Hanmworth described the nature or position of a mortgage
of land to be thus:
…The position of a mortgagee of land whether

freehold or leasehold is well established. In equity
the right of the mortgagee is limited to the money
secured and he holds the land only as security for
his money, therefore although he has the legal estate
in the land, yet in equity he has a mere charge for
the amount due to him. In equity the mortgagor is
regarded as the owner of the mortgaged land subject
only to the mortgagee’s charge and the mortgagor’s
48
[1933] CH 29 at p. 52.
equity of redemption is treated as an equitable

estate in the land of the same nature as other
equitable estates. Moreover no agreement between
the parties that the mortgage should not be
redeemable has any effect in equity, and any
attempt to fetter the equity of redemption with any
other condition than the payment of the money
secured is null and void.
It follows from this relationship between
mortgagor and mortgagee that it would be just as
unconscionable for a mortgagee to set up a claim
to hold the land comprised in his mortgage free
from the equity of redemption as it would be for a
trustee to set up a claim to retain the trust property
in his hands for his own use.
(b) Basis of Equity’s Intervention into a Mortgage Contract-

Collateral Advantages
In G. and C. Kreglinger v. New Patagonia Meat and Cold Storage

Limited49, Lord Viscount Haldane explained the basis of equity’s
intervention into a mortgage contract. His Lordship also discussed the
rule as to collateral advantages. The case is excerpted below:
…My Lords, before I refer to the decisions of this House which

the Courts below have considered to cover the case, I will state
what I conceive to be the broad principles which must govern it.
The reason for which a Court of Equity will set aside the legal
title of a mortgagee and compel him to reconvey the land on
being paid principal, interest, and costs is a very old one. It appears
to owe its origin to the influence of the Church in the Courts of
the early Chancellors. As early as the Council of Lateran in
1179, we find, according to Matthew Paris (Historia Major, 1684
ed. at pp. 114—115), that famous assembly of ecclesiastics
condemning usurers and laying down that when a creditor had
been paid his debt he should restore his pledge. It was therefore
not surprising that the Court of Chancery should at an early
date have begun to exercise jurisdiction in personam over
mortgagees. This jurisdiction was merely a special application
of a more general power to relieve against penalties and to mould
them into mere securities. The case of the common law mortgage
49
[1914] AC 25.
MORTGAGES 175
of land was indeed a gross one. The land was conveyed to the
creditor upon the condition that if the money he had advanced
to the feoffor was repaid on a date and at a place named, the
fee simple should revest in the latter, but that if the condition
was not strictly and literally fulfilled he should lose the land for
ever. What made the hardship on the debtor a glaring one was
that the debt still remained unpaid and could be recovered from
the feoffor notwithstanding that he had actually forfeited the
land to his mortgagee. Equity, therefore, at an early date began
to relieve against what was virtually a penalty by compelling the
creditor to use his legal title as a mere security.
My Lords, this was the origin of the jurisdiction which we
are now considering, and it is important to bear that origin in
mind. For the end to accomplish which the jurisdiction has been
evolved ought to govern and limit its exercise by equity judges.
That end has always been to ascertain, by parol evidence if
need be, the real nature and substance of the transaction, and if
it turned out to be in truth one of mortgage simply, to place it on
that footing. It was, in ordinary cases, only where there was
conduct which the Court of Chancery regarded as
unconscientious that it interfered with freedom of contract. The
lending of money, on mortgage or otherwise, was looked on
with suspicion, and the Court was on the alert to discover want
of conscience in the terms imposed by lenders. But whatever
else may have been the intention of those judges who laid the
foundations of the modern doctrines with which we are concerned
in this appeal, they certainly do not appear to have contemplated
that their principle should develop consequences which would
go far beyond the necessities of the case with which they were
dealing and interfere with transactions which were not really of
the nature of a mortgage, and which were free from objection
on moral grounds. Moreover, the principle on which the Court
of Chancery interfered with contracts of the class under
consideration was not a rigid one. The equity judges looked, not
at what was technically the form, but at what was really the
substance of transactions, and confined the application of their
rules to cases in which they thought that in its substance the
transaction was oppressive. Thus in Howard v. Harris,50 Lord
Keeper North in 1683 set aside an agreement that a mortgage
should be irredeemable after the death of the mortgagor and
failure of the heirs of his body, on the ground that such a
restriction on the right to redeem was void in equity. But he
50
1 Vern. 33; 2 Ch, Cas, 147.
went on to intimate that if the money had been borrowed by the

mortgagor from his brother, and the former had agreed that if
he had no issue the land should become irredeemable, equity
would not have interfered with what would really have been a
family arrangement. The exception thus made to the rule, in
cases where the transaction includes a family arrangement, as
well as a mortgage, has been recognised in later authorities.
The principle was thus in early days limited in its application
to the accomplishment of the end which was held to justify
interference of equity with freedom of contract. It did not go
further. As established it was expressed in three ways. The
most general of these was that if the transaction was once found
to be a mortgage, it must be treated as always remaining a
mortgage and nothing but a mortgage. That the substance of
the transaction must be looked to in applying this doctrine and
that it did not apply to cases which were only apparently or
technically within it but were in reality something more than
cases of mortgage, Howard v. Harris, and other authorities
shew. It was only a different application of the paramount
doctrine to lay it down in the form of a second rule that a
mortgagee should not stipulate for a collateral advantage which
would make his remuneration for the loan exceed a proper rate
of interest. The Legislature during a long period placed
restrictions on the rate of interest which could legally be exacted.
But equity went beyond the limits of the statutes which limited
the interest, and was ready to interfere with any usurious
stipulation in a mortgage. In so doing it was influenced by the
public policy of the time. That policy has now changed, and the
Acts which limited the rate of interest have been repealed. The
result is that a collateral advantage may now be stipulated for
by the mortgagee provided that he has not acted unfairly or
oppressively, and provided that the bargain does not conflict
with the third form of the principle. This is that a mortgage
(subject to the apparent exception in the case of family
arrangements to which I have already alluded) cannot be made
irredeemable, and that any stipulation which restricts or clogs
the equity of redemption is void. It is obvious that the reason for
the doctrine in this form is the same as that which gave rise to
the other forms. It is simply an assertion in a different way of
the principle that once a mortgage always a mortgage and nothing
else.
My Lords, the rules I have stated have now been applied by
Courts of Equity for nearly three centuries, and the books are
MORTGAGES 177
full of illustrations of their application. But what I have pointed
out shows that it is inconsistent with the objects for which they
were established that these rules should crystallize into technical
language so rigid that the letter can defeat the underlying spirit
and purpose. Their application must correspond with the practical
necessities of the time. The rule as to collateral advantages, for
example, has been much modified by the repeal of the usury
laws and by the recognition of modern varieties of commercial
bargaining. In Biggs v. Hoddinott.51 it was held that a brewer
might stipulate in a mortgage made to him of an hotel that during
the five years for which the loan was to continue the mortgagors
would deal with him exclusively for malt liquor. In the seventeenth
and eighteenth centuries a Court of Equity could hardly have so
decided, and the judgment illustrates the elastic character of
equity jurisdiction and the power of equity judges to mould the
rules which they apply in accordance with the exigencies of the
time. The decision proceeded on the ground that a mortgagee
may stipulate for a collateral advantage at the time as a term of
the advance, provided first, that no unfairness is shewn, and
secondly that the right to redeem is not thereby clogged. It is no
longer true that, as was said in Jennings v. Ward,52 ‘a man
shall not have interest for his money and collateral advantage
besides for the loan of it.’
Unless such a bargain is unconscionable it is now good. But
none the less the other and wider principle remains unshaken,
that it is the essence of a mortgage that in the eye of a Court of
Equity it should be a mere security for money, and that no bargain
can be validly made which will prevent the mortgagor from
redeeming on payment of what is due, including principal, interest,
and costs. He may stipulate that he will not pay off his debt, and
so redeem the mortgage, for a fixed period. But whenever a
right to redeem arises out of the doctrine of equity, he is precluded
from fettering it. This principle has become an integral part of
our system of jurisprudence and must be faithfully adhered to.
…We are considering the simple question of what is the effect
on the right to redeem of having inserted into the formal
instrument signed when the money was borrowed an ordinary
commercial contract for the sale of skins extending over a period.
It appears that it was the intention of the parties that the grant
of the security should not affect the power to enter into such a
contract, either with strangers or with the appellants, and if so I
51
[1898] 2 Ch. 307.
52
[1705] 2 Vern. 520.
am unable to see how the equity of redemption is affected. No

doubt it is the fact that on redemption the respondents will not
get back at their business as free obligation as it was before the
date of the security. But that may well be because outside the
security and consistently with its terms there was a
contemporaneous but collateral contract, contained in the same
document as constituted the security, but in substance
independent of it. If it was the intention of the parties, as I think
it was, to enter into this contract as a condition of the respondents
getting their advance, I know no reason either in morals or in
equity which ought to prevent this intention from being left to
have its effect…
(c) Deposit of certificate of title creates an equitable

mortgage.
Mbilishi and Another V. Tyre King Enterprises Limited, Supreme

Court Appeal No. 132/03
[The facts of the case appear from the judgment of the Supreme
Court delivered by LEWANIKA, DCJ]
In this appeal, we shall refer to the Respondent as the Plaintiff

and the 1st and 2nd appellants as the 1st and 2nd defendants,
which is what they were in the court below.
This appeal arises out of a decision by a judge of the High
Court granting the Plaintiff its claims in proceedings by way of
Originating Summons to enforce an equitable mortgage.
The evidence on record is that by a document 7th January
1998 the 1st Defendant pledged his property known as farm
No. 87A Great East Road, Lusaka to secure a credit facility of
K16,800,000.00 granted to the 1st Defendant by the Plaintiff for
the purchase of tyres to that amount. The initial agreement
was followed by a Memorandum of Agreement drawn up by
the Plaintiff’s advocates which was executed by the Plaintiff
and the 1st Defendant appearing on pages 24 to 29 of the record.
The 1st and 2nd Defendants also deposited the Title Deeds to
the property with the Plaintiff. The 2nd Defendant did not pay
for the tyres which were supplied to him on credit prompting
the Plaintiff to institute proceedings to enforce the security which
are the subject matter of this appeal.
Counsel for the 1st and 2nd Defendants has filed two grounds
of appeal namely:
MORTGAGES 179
1. That the court misdirected itself on a point of law when
it refused an application by the Appellant’s advocates
for the matter to go for trial given the contentious issues
which had been raised in the affidavits before the court;
2. That the court misdirected itself and erred at law when
it determined that by virtue of the equitable mortgage
the Respondent was entitled to the remedy of foreclosure
which would entitle it to the right of sale….
As to the second ground of appeal, Counsel referred us to Section
4 of the Lands and Deeds Registry Act, Cap 185 of the Laws
which provides as follows:
4 (1) Every document purporting to grant, convey or

transfer land or an interest in land, or to be a lease or
agreement for lease or permit of occupation of land
for a longer term than one year, or to create any
charge upon land, whether by way of mortgage or
charge, and all bills of sale of personal property
whereof the grantor remains in apparent possession,
unless already registered pursuant to the provisions
of the ‘North-Eastern Rhodesia Lands and Deeds
Registration Regulations, 1905’ or the North-Western
Rhodesia Lands and Deeds Registry proclamation,
1910’ must be registered within the times hereinafter
specified in the Registry or in the District Registry if
eligible for registration in such District Registry.
Provided that if a document creating a floating charge upon land

has been registered under the provisions of section ninety-nine of
the Companies Act or Section 32 of the Co-operative Societies
Act it need not be registered under the Provisions of this part
unless and until such charge has crystallised or become fixed.
Counsel said that the Memorandum of Agreement purported
to create a charge on whatever was the subject land by way of a
mortgage or otherwise but it was not registered at the Lands and
Deeds Registry. He said that the non registration of the said
document contravened the provisions of Section 4 (1) which
provides that such a document must be registered at the Lands
and Deeds Registry. That it follows therefore, that the said
Memorandum of Agreement which was not registered could not
purport to grant or create a charge on the land or a mortgage or
otherwise which would entitle the Respondent to the remedy of

foreclosure or a power of sale.
Counsel further referred us to Section 66 (1) of the Lands and Deeds

Registry Act which provides as follows:
66 (1) A power of sale of the whole or any part or

parts of any property subject to a mortgage shall
become exercisable by a mortgagee if the
mortgage is made by deed and the mortgage
money payable thereunder has become due and
the mortgage is not redeemed before sale, and
every such power of sale shall be with and
subject to the powers and obligations and other
provisions relating to sales by mortgagees
contained in the conveyancing and law of
Property Act, 1881 of the United Kingdom, or
any statutory modification thereof applicable in
Zambia, but neither the Registrar nor any person
purchasing for value from such a mortgage shall
be bound or concerned to see whether all or
any of the provisions of that Act have been
complied with or whether any money remains
due under the mortgage power of sale.
Counsel submitted that it cannot be said that the Memorandum of

Agreement is a mortgage made by deed for the Plaintiff to be entitled to
a power of sale. He further submitted that while the Plaintiff may be
entitled to judgment for the sum owed, the remedy of foreclosure on the
purported mortgaged property and the attendant power of sale were not
available to the Plaintiff and he urged us to allow the appeal and set
aside the judgment of the court below….
As to the second ground of appeal, Counsel for the plaintiff submitted
that the court below was on firm ground in finding that there was an
equitable mortgage entitling the Plaintiff to the remedy of foreclosure.
He said that what the court below ordered was a foreclosure and that
no mention was made by it of a power of sale. That even though the
Memorandum of Agreement may not have been registered as required
by Section 4 of the Lands and Deeds Registry Act, and perhaps because
of this same situation the court below was on firm ground in finding that
there was an equitable mortgage created.
MORTGAGES 181
He referred us to a passage in Megarry’s Manual of the Law of
Real Property, 6th Edition on pages 468-469 where the learned authors
state that:
...equity treats an enforceable contract to create a legal

mortgage as an actual mortgage, provided it is supported
by sufficient evidence in writing or a sufficient act of
part performance. Similarly, an imperfect legal mortgage
satisfying these requirements is treated as an agreement
for a mortgage and thus as an equitable mortgage...since
1783 the rule has been that a mere deposit of title deeds
which cannot be accounted for in any other way is taken
as part performance of a contract to create a legal
mortgage, even if not a word about such a contract has
been said; such a deposit thus creates an equitable
mortgage….
Counsel for the Plaintiff submitted that in this case there was more than
sufficient evidence in writing of the intention of the parties to create a
mortgage, there was also a deposit of the Title Deeds. He said that
equity will not permit a statute to be used as an instrument of fraud. He
urged us to dismiss the second ground of appeal as well.
We are indebted to both Counsel for the submissions which we have
taken into account in arriving at our decision and we have also considered
the evidence on record.
Dealing with the first ground, there is no dispute on the evidence on
record that the 2nd Defendant had purchased tyres from the Plaintiff
worth K16,800,000.00 on credit. There is also no dispute that the credit
facility was secured by a Memorandum of Agreement whereby the 1st
Defendant pledged his property as security for the credit facility and
deposited the Title Deeds to his property with the Plaintiff. The 1st
Defendant did not file an affidavit in opposition to dispute the fact that
he had executed the consent and Memorandum of Agreement, or to
allege that the signatures on these documents were forgeries. The 2nd
Defendant did not deny being indebted to the Plaintiff and was not able
to adduce any evidence of any payments being made to the Plaintiff.
The Property that was pledged as security was known to the parties
and Title Deeds to the same had been deposited with the Plaintiff. Any
misdescription of the Property either in the Memorandum of Agreement
or in the letter from the Defendant’s Advocates would not alter the fact
that the parties were fully aware of the property that they were dealing
with. This is even more so, given the fact that the Defendants had
deposited the Title Deeds to the property with the Plaintiff. We are fully
satisfied that the learned trial Judge was on firm ground in holding that
there were no contentious issues which would warrant him to hold a

trial. The first ground of appeal cannot succeed.
As to the second ground of appeal, it is common cause that the
Memorandum of Agreement herein was not registered in terms of Section
4 of the Lands and Deeds Registry Act. But it is also common cause
that the 1st Defendant deposited the Title Deeds to his property as security
for the credit facility extended to the 2nd Defendant by the Plaintiff. It is
also trite law that a deposit of Title Deeds, without more, creates an
equitable mortgage, and in our view from the evidence on record, the
learned trial Judge could not have come to any other conclusion than to
find, as he did, that there was an equitable mortgage. The second ground
of appeal cannot succeed as well….
(d) Equitable mortgage – Creation – Short-comings of

Equitable Mortgage - need for a caveat in order to protect
one’s interest in land
Magic Carpet Travel and Tours Ltd v. Zambia National Commercial

Bank Limited [1999] ZR 61
In Magic Carpet Travel and Tours Limited v. Zambia National

Commercial Bank Limited, the defendant bank created an equitable
mortgage with a third party. Thereafter, the third party fraudulently
obtained a duplicate certificate of title and the property was in due course
assigned to the plaintiff. The defendant registered a caveat on the property
as an intending mortgagee. The plaintiff applied for its removal. The
case is excerpted below.
SILOMBA, J: By an originating Summons the plaintiff, Magic Carpet Travel

and Tours Limited, has applied for the following reliefs:
(a) An order to secure the removal of the caveat placed
on stand number 5633, Lusaka, by the defendant,
Zambia National Commercial Bank Limited; and
(b) An order for the Registrar of Lands and Deeds to cause
to be registered in the Lands and Deeds Registry an
order withdrawing the caveat from stand number 5633,
Lusaka….
The issues that arise from the affidavits both in support of and in
opposition to the originating summons, as well as, from the oral
submissions of the learned legal counsel, are three:- The first
one related to the acquisition of the stand by the plaintiff without
notice of fraud and the consequences of such an acquisition.
MORTGAGES 183
The second issue is whether or not the entry of a transfer of
land in the register before a caveat is registered is valid; and
thirdly, the significance of an equitable mortgage and the risks
involved.
From the facts of the case, it is not in dispute that Major
Richard Kachingwe entered into mortgage arrangement with
the defendant to secure some money. The only collateral he
provided was a certificate of title to stand number 5633, Lusaka
thereby creating an equitable mortgage between the defendant
and himself. It is also not in dispute that Major Kachingwe
fraudulently assigned the stand to S.N. Patel and S.H. Patel
through the use of a duplicate certificate of title with he obtained
on the pretext that the original certificate had been lost when in
fact this was not the case. The fraud becomes even more serious
if the issue of a duplicate title was not preceded by an
advertisement….On the last issue of an equitable mortgage, the
position at common law is that once a borrower has surrendered
his title deed to the lender as security for the repayment of a
loan, an equitable mortgage is thus created; the borrower, in
such a relationship, cannot deal with the land without the
knowledge and approval of the lender whose interest in land
takes precedence. One of the shortcomings of an equitable
mortgage is that it is not registered in the Lands and Deeds
Registry as an encumbrance against the land; the relationship
between the lender and the borrower is one that is based on
mutual trust between the two.
The lesson flowing from the present case is that an equitable
mortgage is open to abuse; in cases of fraud, an equitable
mortgage cannot, of itself, provide sufficient security for the
repayment of the loan. With the decline in the economic fortunes,
the majority of borrowers have a tendency for dishonesty. To
counteract the dishonesty, any potential mortgagee is strongly
advised to take advantage of Section 76 of the Lands and Deeds
Registry Act by registering a caveat against a mortgaged property
as a matter of routine.
(e) Mortgagee’s Remedies – Mortgagee’s remedies are

cumulative – Equity’s interference with contractual rights
of a Mortgagee
S. Brian Musonda (Receiver Of First Merchant Bank Zambia

Limited (In Receivership) v. Hyper Food Products Limited, and
Two Others [1999] ZR 124
Court delivered by NGULUBE, CJ, as he then was]
The appellant was the receiver of First Merchant Bank Limited

which we were informed has since gone into liquidation. The
third respondent borrowed a sum of K500 million on a facility
from First Alliance Bank (Zambia) Limited. At the request of
one Ibrahim Sildky Yusuf who appears to have been in total
control of all the respondent companies, First Merchant Bank
agreed to guarantee the loan borrowed by the third respondent
from First Alliance Bank. By their letter of guarantee dated
17th January 1997, First Merchant Bank undertook to repay a
sum of up to K500 million only in the event that the third
respondent failed to pay the same by 30th June 1997. The possible
exposure of First Merchant Bank was in turn secured by equitable
mortgages over two properties belonging to the first and second
respondents respectively which were offered as security for
the indebtedness of the ‘sister’ company. The third respondent
defaulted and First Merchant Bank duly paid First Alliance Bank
the K500 million upon their guarantee. This was done by banker’s
cheques whose amounts were then debited to the overdrawn
account of the third respondents. The third respondents, as the
principal debtors, failed to pay and First Merchant Bank fell
back upon the securities which had been offered by the Sureties,
that is to say, the properties of the first and second respondents.
The appellant commenced a typical mortgage action brought
by a mortgagee: He asked for the payment of the money secured
by the equitable mortgages; foreclosure; sale; delivery up of
possession: and further or other relief deemed appropriate by
the Court. The mortgagee’s remedies are truly cumulative;
leaving aside the fact that an equitable mortgagee’s remedies
are somewhat more restricted than those of a legal mortgagee.
Thus, by consent of the parties, the Honourable Mr Justice
Kakusa made an order on 20th May 1998 requiring the
MORTGAGES 185
respondents (as defendants) to pay to the appellant (as plaintiff)
a sum of K939,401,703.96 (accumulated principal and interest),
together with interest at 70% per annum from 2nd February
1998 until payment and that such money be paid within a period
of sixty days. It was also ordered that the defendants deliver
possession of the mortgaged properties being stands 4514 and
4515 Lusaka. In default of payment within sixty days, it was
ordered that the plaintiff be at liberty to exercise their right of
foreclosure over or to sell the properties the subject of the
equitable mortgages in order to recover all outstanding sums of
money”. The appellant was also granted leave to issue a writ of
possession. We have quoted the terms of the consent order in
order to underline the fact that the mortgagee’s remedies are
cumulative. However, they are also in the main alternative to
each other. Some of the terms of the consent order were liable
to mislead if not properly construed, for instance the reference
to foreclosure and sale in one breath. Foreclosure and sale are
two distinct and separate remedies though admittedly both are
remedies primarily for the recovery of capital in contradistinction
with the taking of possession or the appointment of a receiver
which are remedies primarily for the recovery of interest. A
foreclosure decree absolute extinguishes the equity of redemption
and vests the mortgagor’s entire interest in the property in the
mortgagee so that the mortgagor’s property belongs to the
mortgagee absolutely. Sale on the other hand is usually more
appropriate where the property mortgaged is worth substantially
more than the mortgage debt. We mention some of these things
only in passing since, as will appear they were peripheral to the
central issues raised, although not entirely irrelevant in
considering the circumstances of this case. In the course of the
hearing before us, we heard submissions on behalf of the
appellant suggesting that if the mortgagee were to sell the
properties concerned (which were said to be worth some US
dollars three million) there would be no obligation to realise a
proper price. Megary’s Manual of the Law of Real Property,
6th Edition, was cited as authority for this startling proposition.
A proper and fuller reading of the passage concerned is infact
to the exact opposite effect. Megarry puts it this way, at pages
477 to 478 under the sub-heading ‘Mode of Sale’
The mortgagee is not a trustee for the mortgagor

of his power of sale, for the power is given to the
mortgagee for his own benefit to enable him the

better to realise his security. Thus he need not delay
the sale to obtain a better price, nor does he have
to attempt to sell by auction before selling by private
contract. Moreover, his motive for selling, such as
spite against the mortgagor, is immaterial. But the
sale must be a true sale; a ‘sale’ by the mortgagee
to himself, either directly or through an agent, is no
true sale and may be set aside. Further, a
mortgagee is under a duty to take reasonable care
to obtain a proper price, so that he will be liable to
the mortgagor if he advertised the property for sale
by auction without mentioning a valuable planning
permission, so that the sort of purchaser likely to
pay a high price for land with such permission failed
to attend the auction.
Again in an earlier edition, the 4th edition of the Law of Real

Property by Megarry and Wade the learned authors expressed
themselves thus at pages 911 to 912 under the subheading ‘no
trusteeship’….
The mortgagee is not a trustee for the mortgagor

of his power of sale, for the power is given to the
mortgagee for his own benefit to enable him the
better to realise his security. But the mortgagor is
the person interested in the proceeds of sale in so
far as they exceed the debt, and his interests must
not be sacrificed. The mortgagee is accordingly
required to act not only in good faith but also with
reasonable care. If he advertises the property
without mentioning that the land has valuable
planning permission he will be accountable to the
mortgagor for the difference between a proper
price and the price obtained. It has been held that
he need not advertise the property, or attempt to
sell by auction before selling by private contract,
or delay a sale so as to obtain a better price, since
he is entitled to proceed to a forced sale. His motive
for selling, too, such as spite against the mortgagor,
has been held immaterial. The House of Lords has
even upheld a sale for the exact amount of money
MORTGAGES 187
due under the mortgage, with costs; but in that case
there was no evidence of negligence or undervalue,
and the mortgagor delayed for four years before
acting. Now that the Court of Appeal has firmly
put the law upon the footing that the mortgagee’s
duty is to take reasonable care to obtain a full price,
some of the earlier decisions may need reappraisal,
particularly those which suggest that the only duty
Is to act in good faith and avoid recklessness. The
law as now clarified accords with that laid down
by statute for building societies, which when selling
as mortgagees must take reasonable care to ensure
that the price is the best reasonably obtainable.
Paragraph 726 of Halsbury’s Laws of England 4th Edition,

Volume 32, also tells us that there is a duty to obtain a proper
price and an obligation to take reasonable precautions to secure
a proper price which has been fixed with due regard to the
value of the property. The various authors of the ‘Megarry’
series and of Halsbury’s Laws all cite authorities with which it
is not easy or even necessary to quarrel. In England at any rate,
if not here also by default, Order 31 of the Rules of the Supreme
Court (see 1999 White Book) directs that the best price that
can be obtained be realised. Colourable sales and sales at a
gross undervaluation by receivers, mortgagees, judgment
creditors and the like are liable to be set aside by the courts
where an obvious injustice or fraud on the debtor or surety is
manifest. We digressed. The real issues here stemmed from an
order subsequently made by a second Judge – Honourable
Madam Justice Chibomba - to allow the debt to be paid by
monthly instalments of K80 million, we understand that the first
Judge was indisposed at the time. There were prior attempts
which were unsuccessful to set aside the consent judgment.
There was even an order again by consent that only the principal
amount of K500 million was to be paid into court within sixty
days from 13th August 1998, with liberty to the plaintiff to levy
execution if payment was not made. As for the balance of the
money award earlier made, this was stayed pending appeal to
this court.
No appeal has in fact been lodged or prosecuted by the
debtors and it was agreed during the hearing before us, if we
understood correctly, that the whole sum of nine hundred plus

million kwacha and interest is payable.
From the affidavits filed below, it was clear that the appellant
had since advertised the properties for sale and was anxious to
sell so as to recover the money which was said to have shot up
to K1.6 billion. The debtors on the other hand were anxious that
the properties - which were worth far more and were earning
handsome rents from tenants of substance - should not be lost
when the debtors were in a position to pay off the debt by
reasonable instalments over a period of time. We should observe,
again in passing, that the appellant selected the remedy of sale
of the sureties’ mortgaged property and sought to proceed
therewith without supervision of the court, that is, without
obtaining an order and directions as (usually) required in a
mortgage action: See e.g., White Book 1999 Ed. Order 31 and
paragraph 893 of Halsbury’s Laws of England, Volume 32,
4th Edition. At the time of the application for payment by
instalments, the debtor’s contended that the judgment for the
payment of K939,401,703.96 with interest, (in default of which
there were also ordered the alternative remedies of a mortgage
action was nonetheless a judgment or order directing the payment
of money within the terms of Order 36 of the High Court Rules
which permits payment by instalments where this is defensible
and warranted. Counsel for the debtors also contended - relying
on Order 88 in the White Book - that the giving of time was
competent even where there had been an order for possession
so that a judgment for the other orders in a mortgage action can
be stayed or suspended for such period as the court thinks
reasonable to give chance to the mortgagor to pay. Counsel for
the mortgagee argued forcefully against the application, indicating
that the judgment creditor/mortgagee preferred foreclosure or
immediate sale.
The question in this appeal is whether it was wrong to allow
repayment by instalments in what was termed a ‘mortgage
action’. We are mindful that there was in this case no ordinary
mortgage of the usual kind where borrowed money is repayable
by instalments of principal and interest secured over the
mortgagor’s property. In this case, First Merchant Bank was a
guarantor or surety of the third respondent while the first and
second respondents were the sureties of the surety. We heard
submissions setting forth what remedies are available to a
mortgagee under the law and as set out in the rules of court,
MORTGAGES 189
including our own High Court Rules, Order 30. We do not
consider that there can be much difficulty with the propositions
of law so discussed but can see the danger of misapprehension
when the remedies of a mortgagee are said to be cumulative.
The submission by counsel for the appellant boiled down to the
proposition that the rules of court and the general law do not
envisage payment by instalments in a mortgage action. It was
argued that where the lending was secured, the mortgagee should
not have his other remedies - such as foreclosure or sale - shut
out by a court and such mortgagee should have unfettered liberty
to enforce his security, it was said that even if the equity of
redemption is available to the mortgagor, it should not enable a
defaulting mortgagor to remain indebted indefinitely. It was
pointed out that in this case, the sum of K500 million was to be
paid within a short time. With interest, it had risen to a very
large sum and even though K240 million had been paid and
taken out as at the time of the hearing before us - it was wrong
to shut out the other remedies and to confine the mortgagee to
accept only the repayment of the money. It was said that the
mortgagee should be free to select one or all of his cumulative
remedies at once. The complaint was that the second judge tied
down the appellant to one only of the remedies awarded by the
first judge. It was pointed out that the first judge had given time
to the debtors and they had failed to pay the whole of the amount
due within such time.
We will proceed as if this were indeed a mortgage action as
contemplated by our rules. We say this because the Court of
Appeal in England has suggested that facts like those here may
after all not qualify to be a mortgage action. Thus in Order 88/1/
2, under the subheading ‘payment of moneys secured by the
mortgage’ (the whole Order 88/1 being almost the same as our
High Court Rules Order 30 Rule 14) the White Book (1999
edition) notes as follows
In National Westminster Bank v. Kitch,53 it was

held, contrary to the previous understanding of the
rule, that a claim to payment of money secured by
a mortgage only falls within the definition in r.1(1)(a)
if the plaintiff is relying on the mortgage to make
his claim. The mere fact that the moneys claimed
are secured by a mortgage does not of itself bring
53
[1996] 1 WLR 1316 [CA].
the action within the definition. The effect of this

decision is that an action by a bank for payment of
an overdraft, even if secured, is not a ‘mortgage
action’ and is outside Order 88 because the
obligation to pay does not arise under the mortgage.
Therefore, such claims can be brought in the QBD
and judgment in default can be entered without
leave.
The Court of Appeal was in that case concerned with an ordinary

overdraft on current account. Presumably a claim by a bank for
repayment of a home purchase loan is still within Order 88 even
if the bank could frame its case without referring to the mortgage
securing the loan. As already indicated, we leave the point open
and proceed, as did the court below and the parties, as if this
were truly a mortgage action. The judgment of the first judge
and made by consent of the parties was indisputably for the
payment of money in default only of which within the time
allowed the other remedies were also awarded. To that extent,
it was plainly a judgment well within the terms of the rule which
permits payment by instalments. We agree that the discretion of
the court must be exercised judicially on sound considerations
which would enable the judgment creditor to realise the fruits of
success in the action within a reasonable time. What is a
reasonable time is a question of fact in the circumstances of
each case. Here, the learned second judge made an order which
would enable K500 million to be paid within seven months. If
the whole of the amount plus interest including the balance not
in fact appealed were paid on the same basis, the period would
still not become ‘unreasonable’. The complaint here was that
the second learned judge effectively shut out the alternative
remedies. We do not read the ruling in this way and we are
satisfied that the other remedies were simply postponed or
suspended. The sureties were in effect given a more realistic
opportunity to pay. In the exercise of its equitable jurisdiction,
the court has long been entitled to interfere with the contractual
rights of the mortgagee to the extent of enlarging time even
where there is foreclosure (see for example paragraph 903
of Halsburys Laws of England, 4th Edition, Volume 32) or
suspending orders for possession or postponing the alternatives
if there are reasonable prospects that the moneys due can be
paid within a reasonable time (See generally the discussion in
MORTGAGES 191
the various notes under Order 88 in the White Book, 1999
edition.)
We have not lost sight of the passionate appeal to the courts
not to give comfort to defaulting debtors. We are alive to the
needs of commerce and the desirability of effective and speedy
remedies for the recovery of debts. However, the position here
is that the claimant was in receivership and is now under
liquidation. The depositors and creditors have a good chance of
seeing their money recovered from these debtors who were
guarantors within a relatively reasonable time without squeezing
and consigning the respondents into a similar fate. We have also
borne in mind what counsel on both sides confirmed, namely,
that the debtors have been paying into court K80 million per
month and the judgment creditor has been duly retrieving such
moneys. It is not contrary to law nor to the rules for the court to
exercise its equitable jurisdiction of affording relief where a
judgment debtor can pay within a reasonable time even if this
results in fettering the judgment creditor’s freedom of inflicting
a remedy of their own choice or preference in a mortgage action.
The second learned judge did not exercise her discretion so
wrongly or so improperly that we should feel constrained to
reverse her.
In sum, the appeal is unsuccessful.
(f) Duty of Mortgagee to obtain the best possible price or

true market value of the property - Statutory power of
sale without recourse to Court – Where the power of
sale is exercised through a Court order then an account
of sale has to be made through the Court by means of
Summons for an Account to be rendered
Finance Bank Limited v. Africa Angle Limited, Ibrahim Yusuf Sildky

and Another (1998) ZR 315
[The facts appear in the judgment of the Supreme Court which was
delivered by MUZYAMBA, JS]
For convenience we shall refer to the appellant as plaintiff and

to the 1st, 2nd and 3rd respondents as 1st, 2nd and 3rd defendants
for that is what they were in the court below.
This is an appeal against a High Court decision ordering

revaluation of the mortgaged properties which have since been
sold, an account to be rendered and a stay of execution.
Briefly, the facts of this matter are that the 2nd defendant is
a director of the first defendant. The first defendant obtained a
loan of K368,660,075 for procurement of 11 brand new Toyota
Hilux double cabin vehicles, one brand new Mercedes Benz
5500 series and two Nissan Mini buses. As a security for the
repayment of the loan the 3rd defendant mortgaged his properties
known as subdivisions 10 and 107 of farm number 396a, Lusaka.
The first defendant failed to repay the loan as agreed and the
plaintiff took out originating summons for the repayment of the
loan and interest, vacant possession and delivery of the mortgage
properties so that it could exercise its power of sale under the
mortgage deed. On 27 September 1995, the court approved a
consent judgment filed by the parties. The judgment at pages
50-51 of the record of appeal reads as follows:
Upon hearing Counsel and by Consent of the

parties hereunder signified:
1. IT IS HEREBY ADJUDGED THAT the
plaintiff do recover from the Defendants the
sum of five hundred and sixteen thousand Five
hundred and four United States Dollars and fifty
eight cents (US$516,504,58).
2. IT IS HEREBY ORDERED that the full
judgment debt be payable in the United States
Dollar currency and should be settled in any
event by the defendants within three months
from the date of this judgment.
3. IT IS FURTHER ORDERED that should there
be a default by the defendants for any reason
in settling the full judgment debt within three
months from the date of this judgment, then the
Plaintiff will be entitled forthwith to the relief
of foreclosure and be at liberty to take
possession or in the alternative exercise its
power of sale of Subdivision Number 107 of
Farm Number 396a, Lusaka respectively.
4. Costs of these proceedings will be borne by
the Defendants.
MORTGAGES 193
There then followed execution for possession and sale of the
properties and a further execution for the balance of the judgment
debt and an application by the defendants for setting aside of
execution wrongly done and revaluation of the properties to
determine their true market value and for an account to be
rendered of the sales. The learned trial judge granted the
application and the plaintiff now appeals to this court. The appeal
is on three grounds that the lower court erred by:
1. Ordering a re-valuation of the two properties sold by
the appellant as mortgagee pursuant to a Consent
judgment as such a re-valuation would not be true, fair
or realistic because:
(a) A valuation can never be retrospective and is not
in the interest of justice.
(b) Over one year had elapsed since the properties
were sold and property market prices have since
escalated in the country.
(c) The properties have since been re-developed and
improvements added thereon by their new owner.
2. Ordering a re-valuation of the properties as the prices
obtained were the best or highest prices prevailing on
the open market in that the appellant owed a duty not
only to the Mortgagor but also to itself to reduce the
judgment debt as far as possible and that this the
appellant did by advertising the properties by public
tender through estate agents and obtaining valuation
reports; no evidence was adduced by the respondents
to prove otherwise.
3. Staying Execution and Setting aside the Writ of Fieri
Facias as no leave of Court for execution was required
in the circumstances and as the appellant had
adequately accounted to the respondents on the sale
of the properties and the balance due on the Judgment
debt….We will now deal with the arguments on
grounds 1 and 2. It was argued by Mr Roberts that the
order of revaluation was not in the interests of justice
because the properties were sold a year ago and
improvements have been made to the properties.
Further, that a valuation can never be retrospective.
Moreover that no evidence was adduced by the
defendants that the properties were under valued or
that the prices obtained were inadequate. On the
contrary, that the properties were advertised for sale,

tenders and valuation reports obtained, though there
was no obligation on the part of the plaintiff to obtain
any valuation. That in the exercise of its duty as a
mortgagee the plaintiff obtained the best possible prices
for the properties. On the duty of a mortgagee to obtain
the best possible price he referred us to a number of
cases. And Mr Yangailo’s argument was simply that
the court ordered a re-valuation of the properties at
the time of sale and that it has not been shown that it is
impossible to get a valuation of the properties at the
time of sale. Further, that the cases cited by Mr
Roberts were distinguishable from the present case.
We will now consider the authorities cited. In Standard
Chartered Bank v. Walker,54 it was held by Lord Denning
that if a mortgagee enters into possession and realises a
mortgaged property it is his duty to use reasonable care to obtain
the best possible price which the circumstances of the case
permit. In our view the best possible price must mean true open
market value. In that case, a receiver appointed by the mortgagee
sold the assets of the mortgagor to meet the debt. The amount
realised was not enough to pay off the overdraft. In Cuckmere
Brick Company v. Mutual Finance, 55 a piece of land
mortgaged for 50,000 pounds and for which planning permission
was obtained to erect 100 flats and subsequently another
permission given to erect 35 houses was sold by the mortgagee
through auctioneers for 44,000 pounds because the auctioneers
forgot in their advertisement to mention the planning permission
for the erection of flats. The mortgagor claimed 77,000 pounds
as value of the land. The learned trial Judge found the value of
the land to be 65,000 pounds and ordered accounts and inquiries
to be made. On appeal it was held by Lord Bowen and Lord Fry
that it was the duty of a mortgagee when realising the mortgaged
property by sale to behave as though he was selling his own property
so that the mortgagor may receive credit for the value. We
respectfully agree with their decision. In Daka v. Patel and Zambia
State Insurance Corporation Limited,56 the appellant mortgaged
his property, Stand No. 4512 Northmead, Lusaka to Zambia National
Commercial Bank and Zambia State Insurance Corporation, the
54
[1982] 3 All ER 938.
55
[1971] 1 CHD 949.
56
(1995 – 1997) ZR 108.
MORTGAGES 195
second respondent. When he fell in repayment arrears the
property was sold to pay off both mortgages. Initially the first
respondent put up a tender which was less than the amount of
the two mortgages. His tender was accepted on condition that
he increased the offer to pay off both Mortgages. This he agreed
-and the mortgages were paid off for a total of K397,369-67. A
year later the appellant obtained a valuation for KI ,000.000 and
argued that the property should have been sold for that amount,
This court held, at page 6:
In this case, in order to prove that the price obtained

for the property was in some way inadequate, it
was not sufficient to produce a valuation report
dated 10 February, 1989, in respect of property
which was contracted to be sold in January, 1988.
As the learned trial Judge commented in his
judgment, at the relevant period there were
dramatic increases in the price of property and
without evidence that in or about January, 1988,
the price realised was too low, the appellant’s claim
in this respect cannot be supported.
That case, as Mr Yangailo rightly submitted is distinguishable

from the present case in that the defendants in this case sought
revaluation of the properties at the date of sale and the court so
ordered. The order at page 8 of the record reads:
As regards valuation by an independent valuer, I

also grant the defendants the order they seek in
that regard. I do not understand the parts in the
judgments of the cases cited to me by Mr Roberts
to mean that property cannot be revalued. The fact
that the properties have been sold is immaterial. If
the properties have not been demolished it is easy
to trace its value at 1995 conditions. Of course
only improvements made to the properties will be
deducted. Before the plaintiff could account to the
defendants and before coming to court it was unfair
for the plaintiff to issue a Writ of Fifa against the
defendants. The plaintiff was to recover his monies
from the mortgaged property and the plaintiff had
to take all reasonable steps to see that he recovered
his money from the properties. For instance, the

plaintiff could have put the properties on rent first
before selling the properties. The defendants
reaction to the plaintiff’s action, I think is quite
natural. They must be thinking that the plaintiff
wants to economically ruin them. For the reasons
I have given above I set aside the Writ of Fifa
pending the execution of the orders to account and
to value the properties.
Moreover, in James Daka the sale paid off the mortgages

whereas in this case only an amount of K215,500,000 was
realised and we do not understand how properties which were
found to be sufficient securities for the loan of K368,660,075 at
the time of borrowing in 1994, could cost less two years later
especially so in the absence of evidence that market values had
fallen over the years. Further, we do not see the propriety of
expressing a loan which was disbursed in Kwacha into dollar in
the Consent Judgment. This was certainly disadvantageous to
the defendants.
In Warner v. Jacob,57 the mortgagor brought an action
against the mortgagee and purchaser of the mortgaged property
to set aside the sale on the ground that the property was sold for
less value. It was held that if a mortgagee exercises his power
of sale bona fide for the purpose of realising his debt and without
collusion with the purchaser, the court will not interfere even
though the sale be very disadvantageous, unless the price is so
low as in itself to be evidence of fraud. We respectfully agree
with this decision. However, that case is distinguishable from
this case in that the defendants are not seeking to set aside the
sale but to establish the true market value of the properties at
the time of sale. In the circumstances of this case we do not
agree with Mr Roberts that the order of the court below was
not in the interests of justice. It certainly was. The appeal would
therefore fail on these grounds. As regards ground 3, the learned
trial Judge stayed execution and set aside the writ of execution
for the balance of the judgment debt pending re-valuation of the
properties and an account to be rendered of the sales. This
ground is dependant upon the first ground and the first ground
having failed this ground must also fail. We wish to add, however,
that a statutory power of sale under a mortgage deed is usually
exercisable without recourse to Court and where it is exercised
by or through a court order then an account of the sale has to be
57
[1882] 20 Ch.D. 220.
MORTGAGES 197
made through the court by means of summons for an account to
be rendered. The appellant ought therefore to have taken out
summons to render an account to the defendants of the sales
before levying execution for the balance of the judgment debt.
The learned trial Judge was therefore right in staying execution
and setting aside the Fifa.
(g) The mortgagee has a duty to account after the sale of a

mortgaged property
In Modern Jacks Suppliers Ltd v. Strong Engineering Ltd And

George Sokota(Suing As Liquidation Manager Of Africa
Commercial Bank Zambia Ltd),58 on an appeal against the High Court’s
refusal to set aside an order of sale of the mortgaged property, the
Supreme Court (Chirwa, JS who delivered the judgment of the court)
observed and commented thus:
…The second ground of appeal was that the court

fell into error by dismissing the appellants’
application to set aside the order of sale and to
make enquiries and ascertain the amount lawfully
due to the respondent. In considering this
application, we note from the summons for setting
aside the order of sale that there was a prayer for
an account to be made in this matter to ascertain
the amount due to the mortgage. This prayer was
never considered by the learned trial court and no
decision was made. We agree that where a
mortgagee exercises his right of sale and that there
had been some payments and a sale has in fact
taken place, the mortgagee must account to the
mortgagor the total sum paid under the mortgage
and proceeds from the sale. This was not done
here. We would allow this ground of appeal and
order that the respondent must account to the
appellants on the mortgage i.e. the payments made
on the mortgage; the principal outstanding before
the respondent went under…
58
Supreme Court Appeal No. 50 of 2001.
(h) Sale of mortgaged property – Statutory power of sale –

A mortgagee in exercising his statutory power of sale is
not required to proceed to Court under Order 30 Rule
14 of the High Court Rules - Chapter 27 of the Laws of
Zambia
Investrust Merchant Bank Limited and Simbeye Enterprises v. Ebrahim

Yousuf – [SCZ No. 4 of 2004] Appeal No. 85a/2002
by CHIBESAKUNDA, JS]
…This is an appeal against a ruling of the High Court dated 3rd

April 2002. The appellants in the main application had applied to
discharge the caveat lodged by Yousuf Issa on Stand No. 16835,
situated in the Lusaka Province of the Republic of Zambia.
The court, on 16th June 1999, granted that application.
The history of this cause of action thereafter is embedded in
a series of applications and counter applications, thus making
rather confused record of the proceedings more or less casting
a shadow on the administration of justice as we know it. We will
outline these proceedings to show this confusion and also to
enable us to adequately address the issues in this appeal.
The facts before the High Court were that, the respondent,
in order to facilitate a loan between Cotmark Limited of
K200,000,000.00 and the 1st appellant, by a third party mortgage,
on 23rd April 1998 pledged his property, Stand No. 16835, situated
in the Lusaka Province of the Republic of Zambia, as security.
Consequently, an endorsement of this charge was duly inserted
on the title deed of this property. Cotmark Limited defaulted in
settling this loan. In line with Clause 7 of the mortgage deed, the
1st Appellant demanded settlement of the loan in question.
The first letter of demand is dated 9th November 1998. It
reads:
MORTGAGES 199
1MB/CR DEPT/DH/mz
9th November 1998
Mr Ebrahim Yousuf
c/o Cotmark Limited
P.O. Box 30778
LUSAKA
Dear Sir
Notice of determination of guarantee in favour of

Cotmark Limited K185,639,376.16 as at 8.11.98.
We refer to the above captioned subject. Please
be advised that Cotmark Limited have failed to
repay the outstanding debt in our books despite
our several reminders.
In this vein therefore we are now calling upon
you as guarantor to settle this outstanding debt
together with accrued interest thereon within
fourteen (14) days hereof.
Meanwhile, in terms of paragraph 3 (b) of the
mortgage you signed in favour of the bank, we
hereby notify you that the Bank has decided to
remove you as a trustee and in your place have
appointed Mr Olivet Sikes Malungisa of Investrust
Merchant Bank Zambia Limited, Afe House, P.O.
Box 32344, Lusaka. The said Mr Malungisa will
sell the property if you do not redeem the debt
within the next fourteen (14) days.
Yours faithfully
INVESTRUST MERCHANT BANK ZAMBIA

LIMITED
R.W. Taylor
MANAGING DIRECTOR
The second letter is dated 30th November 1998. The third letter
is dated 9th December 1998 and the fourth letter is dated 14th
December 1998. All these letters gave notice to the respondent
that the mortgagee intended to sell the property if the respondent
failed to liquidate the loan involved as agreed.
According to the affidavit evidence and also the evidence

from these letters, the respondent had partially liquidated the
loan. The last letter dated 14th December 1998 says:
1MB / CR DEPT/DH/mz
14 December 1998
Mr Ebrahim Yousuf
c/o Cotmark Limited
P. 0 Box 30778
LUSAKA
Dear Sir
FINAL LETTER OF DEMAND
We acknowledge receipt of a sum of K57,485,000

(Fifty Seven Million, Four Hundred and Eighty-Five
Thousand Kwahca only) being part payment aimed
at settling the Cotmark debt in our books. This has
reduced the outstanding amount to
K140,427,576.57.
We wonder what has become of the sale of
your three properties in Chipata proceeds of which
were meant to pay-off this debt. We were advised
by you approximately three weeks ago that the
sale was imminent. We believe the Bank has been
extremely indulgent so far but has decided to give
you final notice that unless the debt is fully settled
by Wednesday, 16.12.68, we shall have no option
but to proceed with the sale of your Freedom way
property without further notice.
Please be advised accordingly.
Yours faithfully
INVESTRUST MERCHANT BANK ZAMBIA

LIMITED
R.W. Taylor
MANAGING DIRECTOR
On 15th December 1998, the 1st appellants entered into a

contract of sale of the property in question with the 2nd appellant.
MORTGAGES 201
At page 88 of the appeal record, a certificate of title was issued
in the name of the 2nd appellant. Unknown to the appellants,
according to them, on 30th December 1998 the respondent
entered into a contract of sale of the same property with a person
by the name of Yousuf Essa at the price of US $200,000. Mr
Yousuf Essa then lodged a caveat on the property in question on
31st December 1998. It is this caveat, which the appellants sought
to discharge against the respondent before the High Court. This
application was by originating summons supported by affidavit
evidence. There was an affidavit in opposition to this application.
Although it was argued inter alia that the caveator was not a
party to the proceedings, the High Court, on 16th June 1999,
nonetheless ordered the discharge of the caveat as follows:
Upon hearing Counsel for the parties, herein, it

is ordered that the caveat placed by the defendant
on the Mortgaged Property, known as Plot
16835, Freedom Way, Lusaka, and sold by the
plaintiff to Simbeye Enterprises Limited, upon
an express power of Sale containing in the
Mortgage Deed between the plaintiff and the
defendant, dated 23rd April, 1998, be lifted,
forthwith. The costs of and occasioned by this
matter be borne by the defendant, in any event…
On 27th of July 1999, the respondent applied for a stay of this

Order, exparte. The application was granted. In the same order,
there was a further order that the discharge of the caveat be
stayed until the appellants complied with Order 30 Rule 14 of
the High Court Rules (4) or Order 88 of the Rules of the Supreme
Court (6). This said order was returnable on 26th August 1999
as interparte application. Curiously enough, before the interparte
hearing, the respondent applied exparte to the same Judge for
an exparte injunction. On 3rd September 1999, an injunction
was granted exparte pending interparte application returnable
on l4th of September 1999. Before the 14th of September 1999
the respondent took out a notice for attachment or committal
for contempt of court. Before the court heard this application,
the same respondent took out originating summons for the same
court to determine preliminary issues and questions. These are:
1. Whether a mortgagee, in exercising the power of sale under
the mortgage, is required to proceed under Order 30 Rule 14
of the High Court Rules and/or Order 88 of the Rules of the

Supreme Court.
2. Whether a mortgagee, having exercised its power of sale
under the mortgage, can evict a lawful tenant of the property
other than with a writ of possession;
3. Whether a mortgagee, in possession, is required to sell at the
best possible price (a fair and reasonable valuation), and not
just sufficient to realize his debt;
4. Whether on the answers to the above being respectively
yes, no and yes any subsequent sale is null and void.
And that the costs of this application be costs in the cause.
It is worth noting that these applications, orders and counter
orders glaringly showed total disregard of well-entrenched rules
of procedure embedded in our system of justice. It is also worth
noting that these numerous applications were entertained by the
Judge and the same Judge made these numerous orders causing
confusion. This procedure adopted prima facie made a mockery
of justice. In the originating summons for the court to determine
preliminary issues, both parties put in affidavit evidence in support
and in opposition.
Beside the facts which are already tabulated in our judgment,
the argument by the appellants before the High Court was that
according to the mortgage deed, Clause 7 of the agreement and
in accordance with section 19 of the Conveyance Act, they, as
mortgagees, had a right to sell the property in question after the
respondents failed to discharge their obligation of liquidating the
loan, without recourse to court. They argued that in accordance
with the mortgage deed and Section 20 of the Conveyance
Act, they had given notice to the respondent of their intention to
sell the property in question. They explained that the respondent
had no right of entering into a sale agreement with Yousuf Essa
and placing a caveat on the property in question. He had not
obtained their consent as the mortgagees before getting into
that arrangement. According to them, the property sold to the
2nd appellant was sold for the best price and that as far as they
were concerned, the property had passed to the 2nd appellants
when the respondent purported to sell that property to Yousuf
Essa.
The respondent’s arguments before, the High Court were
that the sale of the property to the 2nd appellants was wrongly
done as they were not given the prescribed notice of the intention
to sell the property by the mortgagees. He argued that the
MORTGAGES 203
mortgagees should have first obtained a court order of vacant
possession before entering into an agreement with the second
appellants to sell that property – Order 30, Rule 14 of the High
Court. It is also their argument that this sale agreement between
the 1st and 2nd appellants was reached after they had obtained
an injunction on 3rd September 1999 restraining the appellants
from going ahead with the sale of the property and as such the
appellants were in contempt of court.
The respondents further argument is that the price of
K200,000,000.00 was in his view unjustifiably low and therefore
establishing mala fide on the part of the 1st appellants in offering
to the 2nd appellant the property in question. They urged the
High Court to set aside the purported sale of the property by the
1st appellant to the 2nd appellants as void ab-initio. The High
Court, as earlier stated, ruled in favour of the respondent and
hence the appeal before us.
The Court below ordered that:
1. A mortgagee in exercising his power of sale under
Mortgage is required to proceed under Order 30 Rule
14 of the High Court Rules (4) and/or Order 88 of the
rules of the Supreme Court
2. A mortgagee having exercised its power of sale under
the Mortgage could evict a lawful tenant of the property
other than with a writ of possession.
3. A mortgagee in possession is required to sell at the best
possible price (a fair and reasonable valuation) and not
just sufficient to realise his debt.
4. In respect to the above, any subsequent sale is null and
void. The appellants being aggrieved with this decision
now appeal to this court.
Before us, Mr Mutemwa relied on his written heads of argument
but highlighted some salient points. He had two grounds of
appeal.
Ground 1 was that the learned trial Judge erred in law and
fact in holding that the sale of the mortgaged property by the 1st
appellant to the 2nd appellant was null and void, on account inter
alia of lack of a court order as provided under Order 30 Rule
14 (4). He referred to pages 6-11, 32-43, 56-62, 102-109 and
137-145 and argued that the learned trial Judge had in the body
of his argument rightly concluded that the 1st appellant had
properly exercised his power of sale with regards to the
mortgaged property, but contradictorily concluded that the
mortgagees should have not sold the property without a court
order in accordance with Order 30 Rule 14 and/or Order 88 of

the rules of RSC.
He explained that on record there was abundant evidence of
the respondents repeated failure to redeem the mortgage and
there was also abundant evidence of the notice given to the
respondent demanding liquidation of the outstanding loan within
a given period or else clause 7 of the mortgage deed was to be
invoked. Citing the case of Daka v. Patel and Zambia State
Insurance Corporation Limited,59 he argued that the appellants
acted in accordance with clause 7, therefore the appellants rightly
exercised the power to sell as contained in the mortgage deed.
He conceded however to the suggestion that in clause 7 the
parties agreed that the 1st appellant would sell the property in
question if there was default in payment within a specific period
without recourse to the court. He went on to say that looking at
the evidence on record, the fact of default in redeeming the
mortgage was beyond question as at no time did the respondent
deny that fact. Even in his own affidavit in reply to the application
to remove the caveat, the respondent confirmed this default by
saying, ‘That with regard to the contents of paragraph 6 of
Malungisa’s affidavit, I only appeal for the sympathy of this
Honourable Court that the plaintiff’s power of sale be not at this
moment in time exercised for the reason outlined below’.
Underscoring this point, he went on to submit that, even the
tone of the respondent’s affidavits and letters on the record was
not to deny the failure to redeem the mortgage but to appeal to
the appellants’ conscience to waive the insistence on him
complying with clause 7 of the Mortgage Deed. To demonstrate
this point he quoted the passage from the same affidavit of the
respondent, ‘That despite the predicament referred to in sub-
paragraph (a) above, I have still managed to pay circa
K80,000,000.00 between 3rd December 1998 and now which
… I am committed to and can settle the remaining K121,955,000.00
of the debt herein …’ This according to him proves that at no time
did the respondent ever dispute that he owed the 1st appellant the
amount in question, and that the 1st appellant had the right to sell
the mortgage property under Clause 7.
On the point that the 1st appellants ignored the injunctive
order made by the court, restraining them from selling the
property to the 2nd appellant, Mr Mutemwa expressed surprise
that the court below accepted the respondents’ allegations, which
59
(1995 – 1997) ZR 108.
MORTGAGES 205
were contained in their affidavit in support of the application for
contempt of court, which application was never entertained by
the court. According to him, the contract of sale of the mortgaged
property, to the 2nd appellant, was concluded well before the
exparte order for stay or the injunction, was granted to the
respondent in September 1999.
He further pointed out that even the injunctive order was
made well after the transactions between the 1st and the 2nd
appellants were concluded. He submitted that the date, 7th
September 1999, when the certificate of title was issued to the
2nd appellant, should not be regarded by this court as the date
when the application was lodged to get these title deeds, as the
process to obtain title deeds takes a long time in the Lands
Registry.
On the argument about the purchase price being unjustiflably
low, citing the case of Finance Bank Zambia Limited v. Africa
Angle,60 he canvassed the view that, the authorities of this court
on this issue, are that circumstances in a given case, have to be
weighed in order to decide whether or not such a price, was
unjustifiably low. He argued that the K200,000,000.00 was the
best price, as the appellants had advertised the property, both in
the Times and Daily Mail newspapers and K200,000,000.00 was
arrived at after taking into account the responses, the appellants
had from the members of the public. There was no collusion
between the parties in reaching K200,000,000.00 as the best
price for the property in question. He went on to say that even
the price of US $200,000 must not be accepted, as a better
offer, because the appellants informed the respondents about
their selling the property for K200,000,000.00 on 28th December
1998.
The respondents on the other hand did not inform the 1st
Appellant of their being offered a better deal of US $200,000.00.
Neither did Yousuf Essa inform the 1st appellant. The appellants
only got to know of this offer when they discovered the caveat.
He, therefore, asked this court to regard this purported better
offer between the respondents and Yousuf Essa as a smoking
gun — a deceptive scheme by the respondents.
On Ground (2), Mr Mutemwa argued that the learned trial
Judge erred in fact and law by holding that the caveat was
illegally removed. He argued that although it is correct that the
person who took out the caveat was Yousuf Essa and the
proceedings were against Ebrahim Yousuf, the learned trial Judge
60
(1998) ZR 315.
should have looked at the provisions of Order 15 Rule 6 (1)(2)

of the Rules of the Supreme Court .
He argued that the court on its own motion should have joined
Yousuf Essa as a party to the proceedings. Referring to the
case of London Ngoma and Others v. LCM Companv Limited
United Bus Company of Zambia (in liquidation),61 he pointed
out that the court should encourage parties to bring all issues in
controversy to court to be fully adjudicated upon. He argued
that it is a well-established principle of law that no cause of
action can be defeated by reason of misjoinder or non-joinder.
The court would still at this stage join Yousuf Essa as a party to
the proceedings under Order 15 Rule 6(2) of the Rules of the
Supreme Court. In conclusion he submitted that the 2nd appellant
still has a certificate of title because when the court granted a
stay order, the 2nd appellant had already lodged his papers before
the Lands Commissioner and that the Lands Registry issued
these title deeds to him.
Mr Yousuf, in responding to these arguments, submitted that
the lower court was on firm ground in reaching the conclusions,
which it did. He argued, that the advocates for the appellants
were neither honest nor earnest in making submissions to us as
a court. He firmly denied the appellants’ assertion that the
Respondent did not, inform the 1st appellant of the transaction
between the respondent and Yousuf Essa. He submitted that as
learned counsel/officers of the court they are duty bound to
bring to court all the necessary details, and all relevant arguments,
which should help the court in reaching a fair decision. He argued
that it was not the duty of the respondents to disclose to the 1
appellant about Yousuf Essa’s caveat. On the other hand,
according to him, it took the respondent several record search
in the Registry, for him to come across the sale agreement
between the 1st and 2nd appellants. He went on to say that the
appellants, or these officers contrary to what they had said to
the court, were aware of the existence of Yousuf Essa’s caveat,
even before they sold the property to the 2nd appellant. This
was so, according to him, because even before the caveat was
lodged there were negotiations between the respondents on one
hand and the 1st appellant and Simbeye Enterprises Limited on
other hand. Asked as to which transaction came first, he
submitted that he did not know which of the two transactions
came first as the negotiations did not have the actual dates. He
61
[1999] ZR 75.
MORTGAGES 207
went on to say that the agreement between Simbeye Enterprises
Limited and the 1st appellant was not dated. He therefore went
on to submit that, the appellants’ assertion that the 2nd appellant
replied to the advertisement and that the K200,000,000.00 was
the best price they could get for the property because there was
no evidence of any other offers which the Appellants obtained,
should be queried. In his own view, the mortgagees bulldozed
the mortgagor in obtaining the vacant possession of the property
in question.
He argued that the mortgagees should have, under Order 30
Rule 14 of the High Court Rules (4), which is the same as Order
18 of the Supreme Court Rules (7) applied for vacant possession.
He went on to submit that the mortgagees did not even produce
a statement of accounts neither did they give 30 days notice as
per Clause (7) of the Mortgage Deed. He went into details of
the correspondence between the appellants and the respondent
in which the appellants demanded the respondent to redeem the
mortgage and the appellant gave the respondent notice that they
would proceed to sell the property in question if the respondent
did not redeem the mortgage within a given period. His
submissions are that the purported notices given to the respondent
were less than 30 days and therefore such notices were defective
as Clause (7) clearly stated that the notice should be not less
than 30 days. When it was pointed out to him that in fact the
transaction between the 1st appellant and Simbeye Enterprises
Limited, had already been concluded and the title deeds were in
the name of the 2nd appellant, he responded that, since in his
view the sale between the 1st appellant and 2nd appellant was
irregular, as the sale price was unjustifiably and inequitably low,
the sale transaction therefore was null and void and as such the
court had power to set it aside. When it was pointed out to him,
that according to the record, the court refused to join Simbeye
Enterprises Limited as a party, he argued that the court below
was right to have rejected the application to join Simbeye
Enterprises Limited as 2nd respondent, as according to him,
since there were already gaps in the process, issued by the
appellants, the court did not have to help them make good their
gaps and that it was rather late to join the other party.
He, further in response, argued that although he conceded
that the mortgagor had failed to discharge his loan obligations,
and that he pleaded for more time to discharge this obligation,
that did not legitimise the sale of the property by the appellants.
These were the arguments before us.
We have considered all the arguments and evidence before

us. From the submissions of the parties, it can be clearly seen
that the major issues, which arose in the appeal, are:
1) Whether or not the caveator can be made a party to the
proceedings before this court under Order 15 of the Rules
of the Supreme Court Rules; and
2) What is the status of the contract of sale between the 1st
appellant and the 2nd appellant?
Order 30 Rule 14 of the High Court rules says:
Any Mortgagee or mortgagor, whether legal or

equitable, or any person entitled to having property
subject to a legal or equitable charge, or any person
having the right to foreclosure or redeem any
mortgage , whether legal or equitable, may take
out as of course an originating summons, returnable
in the chambers of a judge for such relief of the
nature of the kind following as may be the summons
be specified, and as the circumstances of the case
may require; that is to say –( our own emphasis)
payment of monies secured by mortgage or charge;
sale;
Foreclosure;
Delivery of possession (whether before or after
foreclosure ) to the mortgagee or person entitled to
the charge by the mortgagor or person having the
property subject to the charge or by any other person
in, or alleged to be in possession of the property;
Redemption;
Reconveyance;
Delivery of possession by the mortgagee.
This provision is not mandatory.

We note that there was common ground on almost all the
facts before the High Court. There was common ground that
although the respondent (mortgagor) had paid some money
towards the liquidation of the loan, he had failed to redeem the
mortgage within the stipulated time. It is also common ground
that the respondent never denied the fact. It is also common
ground that through out the correspondence and even in the
pleadings he accepted that fact and the fact that the 1st appellant
had the right to sell the property in accordance with clause (7)
MORTGAGES 209
of the mortgage deed as he only pleaded with the 1st appellant
to waive clause (7) of the mortgage deed which says:
Section 20 of the conveyancing Act 1881 shall not

apply to this security but the statutory power of
sale shall as between the bank and purchaser from
the bank be exercisable at any time after the
execution of this security provided that the Bank
shall not exercise the said power of sale until
payment of the moneys hereby secured has been
demanded and the Mortgagor shall have made
default for one month in paying the same but this
proviso is for the protection of the Mortgagor only
and shall not affect a purchaser who shall not be
concerned to see or enquire whether a case has
risen to authorize the sale or due notice has been
given or the power of sale is otherwise properly
and regularly exercised.
Section 19 of the Conveyance Act provides for circumstances

when the mortgagee can sell property if the mortgagor has
defaulted in redeeming the mortgage. Section 20 says:
A mortgagee shall not exercise the power of sale

conferred by this Act unless or until (i) notice
requiring payment of the mortgage money has been
served on the mortgagor or one of several
mortgagors and default has been made in payment
of the mortgage money, or of part thereof, for three
months after such service; or (ii) some interest
under the mortgage is in arrears and unpaid for
two months after becoming due; or (iii) there has
been a breach of some provision contained in the
mortgage deed or in this Act; and on the part of
the mortgagor, or of some person concurring in
making the mortgage, to be observed or performed,
other than and besides a covenant for payment of
the mortgage money or interest thereon.
As can be seen by clause (7), the 1st appellant and the

respondent by agreement excluded the application of Section
20 of the Conveyancing Act in this appellant and the respondent
agreed that if the respondent failed to redeem the mortgage

within a stipulated time, that is 30 days, the 1st appellant had the
right to sell without recourse to court. It should also be noted
that the proviso in clause 7 categorically states that the protection
provided in this clause, although it is only for a mortgagor, shall
not affect a purchaser who was not concerned to see or enquire
whether a cause has arisen to authorise the sale or whether due
notice has been given or whether the power of sale has been
otherwise properly and regularly exercised. In this case, there
was no evidence adduced by the respondent that the 2nd appellant
was not covered by this proviso. In our view, Order 30 Rule 14
does not apply to the 1st Appellant. Mr Yousuf argued rather
forcefully that as the sale price was unjustifiably and inequitably
low, the transaction between the 1st and 2nd appellants was
irregular and that this court had power to set it aside. In the
case of Daka v. Patel and Zambia State Insurance
Corporation Limited,62 this court inter alia held that sale under
section 19 of the Conveyance Act can be done by auction or
private contract. Section 101 of the 1925 Act gives power of
sale to a mortgagee which is binding on the mortgagor. Also at
common law a mortgagee is not directly a trustee of the power
of sale. The power for sale given to a mortgagee is to enable
him to realise his debt, if he exercise it bona fide for that purpose
without corruption or collusion with the purchaser, the court will
not interfere, even though the sale was disadvantageous to the
mortgagor unless the price is very low for it to be in itself evidence
of fraud.
In the case before us, there was no evidence that there was
any collusion between the 1st and 2nd appellants. Neither was
there any evidence of corruption, nor that K200,000,000.00 was
too low a purchase price, as to be evidence in itself of fraud.
(There was evidence that the 1st appellant advertised this property
in both the Daily Mail and Times of Zambia). There was
evidence that the 1st Appellant chose K200,000,000.00 as the
highest bid for the property in question. In our view, therefore,
the 2nd appellant was a bona fide purchaser. He is therefore
covered by the proviso in clause (7) of the Mortgage Deed.
Our conclusion are therefore that Order 30 Rule 14 of the
High Court rules does not apply to this case before us; that a
caveator can be made a party to these proceedings even at this
stage. In view of our conclusions the appeal has merits and is
allowed…
62
[1995-1997] ZR 108.
MORTGAGES 211
6.6 Summary of Chapter Six
This chapter has examined and considered the law of mortgages.

Like many other concepts in land law, a mortgage originates in
contract. Although a mortgage originates in a contract, it also
constitutes a proprietary interest in land. Under a mortgage
transaction, the mortgagee obtains an estate or interest in the
land and the borrower retains an ‘equity of redemption’ which
encapsulates his residual rights in the property. The proprietary
nature of a mortgage brings with it the intervention and attention
of equity, and this can result in a conflict between the mortgage
as an interest in land and the mortgage as a creation of a contract.
The equity maxim ‘once a mortgage always a mortgage’
underscores the point that a mortgage should not be rendered
irredeemable. Any provision inserted in a mortgage deed to
prevent redemption on payment or performance of the debt or
obligation for which the security was given is what is meant by
a clog or fetter on the equity of redemption and is therefore
void. The mortgagor’s right to redeem the mortgaged property
or his ‘equity of redemption’ as it is termed is a necessary incident
to every mortgage, and this right cannot be clogged or fettered.
The interference of equity into a purely contractual arrangement
has been seen or noted from some of the cases that have been
excerpted under this chapter, including the S. Brian Musonda
‘case where it was pointed out that ‘in the exercise of its
equitable jurisdiction, the court has long been entitled to
interfere with the contractual right of the mortgagee to the
extent of enlarging time even when there is foreclosure… or
suspending orders for possession or postponing the
alternatives if there are reasonable prospects that the moneys
due can be paid within a reasonable time…’
The mortgagee’s remedies on default by the mortgagor are
foreclosure, sale, appointment of a receiver and to take possession
but on terms of strict account. These remedies are cumulative.
A mortgagee does not usually need a court order to execute a
sale. There is a statutory power of sale under the Law of
Property and Conveyancing Act of 1881 - 1911. A sale has to
be a true sale. A mortgagee must sell as if he was selling his
own property. He is under a legal duty to get the best available
price. Where a mortgagee exercises his right of sale, he must
account to the mortgagor the proceeds of sale.
Chapter Seven
EASEMENTS AND PROFITS
7.0 Introduction
Easements and Profits, collectively known as servitudes, are

interests entitling their owners to exercise certain rights over
the land of another. Easements may be defined as rights annexed
to land entitling its owner (the dominant owner) to do, or prevent
the doing of, something on another person’s piece of land (the
servient tenement).1 Examples of common easements include:
rights of way, light, support of a building and water.
A Profit à prendre has been described as a right to take
something off another person’s land.2 The thing taken must at
the time of taking be susceptible of ownership.3 Examples of a
profit would include a profit of piscary which entitles a person
to enter another’s land and take fish, profit in the soil giving the
right to take sand, gravel or coal. The main distinction between
an easement and a profit is that the latter entitles its owner to
take away something capable of ownership from the servient
land, while the former does not. An easement also differs from
a profit in that a profit may exist ‘in gross,’ (i.e., independent of
ownership of land or belonging to a person in his own right, not
as annexed to ownership of land) while an easement must always
be appurtenant i.e., attached to ownership of particular land.4
Further, the owner of a profit enjoys possessory rights over the
servient tenement and the owner may bring an action of trespass
for their infringement. The burden of a profit attaches to land
(hence its proprietary status) but the benefit may be held by any
person or indeed any number of persons.
7.1 The Nature of Easements as Interests in Land
Easements comprise certain rights which one land owner may

exercise or enjoy over the land of another. It is important to
point out at the outset that every easement will involve two
separate pieces of land. An easement is a proprietary interest in
1
William, H., Land Law (3rd ed.). London: Sweet and Maxwell (1994), p. 64.
2
Duke of Sutherland v. Heathcote [1892] 1 Ch 475, at p. 484.
3
Lowe v. J.W. Ashmore Limited [1971] Ch 545, at p. 557.
4
Burn, E.H, Maudsley and Burn’s Land Law: Cases and Materials (5th ed.). London: Butterworths (1986), p. 561.
land itself. It is not merely personal to the persons who originally

created it. An easement confers a benefit and a burden on the
land itself so that it may be enjoyed or suffered by any
subsequent owner of the dominant or servient land. An easement
therefore differs from a licence in that a licence is not a
proprietary interest in land and in that an easement is always
appurtenant to land. A lease, like an easement, is a proprietary
interest in land. However, the distinction between the two is
that an easement does not give its owner any possessory right
over the land of another.5
An easement may be either positive or negative. A positive
easement is the right to do something on the land of another, for
example a right of way, whereas a negative easement imposes
a restriction on the servient owner such as with the right of light
or air the servient owner may not build so as to unreasonably
obstruct the flow of light. Similarly, a right of support imposes a
restriction that a neighbour’s property will not be disturbed.
7.2 The Essential Characteristics of an Easement
There are established criteria for determining whether an alleged

right is capable of amounting to an easement. It was laid down
by the Court of Appeal in England in Re Ellenborough Park,6
that there are four essentials for an easement to exist. These
are discussed below.
7.2.1 There must be a Dominant and Servient Tenement
For a right to exist or qualify as an easement there must be a

dominant and servient tenement. Dixon has observed that this
criterion lies at the very heart of the nature of an easement.7 It
may be recalled from above that every easement involves two
separate pieces of land. This is because easements are rights
which exist for the benefit of one piece of land and are exercised
over another. There must be land that is benefiting from the
exercise of the right (the dominant tenement) and land that is
burdened (the servient tenement). In technical terms it is said
that an easement cannot exist ‘in gross, i.e., independent of
ownership of land but only as appurtenant (attached) to a
dominant tenement.8 A privilege to a person with no dominant
land is a licence.
5
Ibid., at p. 562.
6
[1955] 3 All ER 667.
7
Dixon, M., Land Law. London: Cavendish Publishing Limited (1994), at p. 156.
8
Hayton, D., Megary’s Manual of The Law of Real Property (6th ed.). London: ELBS (1982), p. 396.
EASEMENTS AND PROFITS 215
An easement cannot exist unless and until there is both a
dominant and servient tenement in separate ownership. In
London and Blenheim Estates Limited v. Ladbroke Retail
Parks Limited,9 it was held that no easement existed because
the potential servient tenement had been transferred before the
dominant tenement had been acquired.
7.2.2 The Dominant and Servient Tenement must not be Owned

and Occupied by the Same Person
It has been observed that the creation and continued existence

of an easement is dependent on the dominant and servient
tenements being owned or occupied by different persons.10 This
is simply because an easement is essentially a right in another
person’s land: e.g., to walk over it or to enjoy the passage of
light over it. According to the learned authors of Megarry’s
Manual of the Law of Real Property, an easement is essentially
a right in alieno solo (in the soil of another) and therefore a
person cannot have an easement over his land. In Roe v. Siddons
Fry, LJ observed that:
When the owner of Whiteacre and Blackacre

passes over the former to blackacre he is not
exercising a right of way in respect of Blackacre;
he is merely making use of his own land to get
from one part of it to another.11
Rights exercised by an owner over another land of his own are

known as quasi-easements.
Real Property have pointed out that the same person must not
only own both tenements, but also occupy both of them before
the existence of an easement is rendered impossible.12 There
must be both unity of ownership and unity of possession for an
alleged easement to be rendered impossible. This means that a
tenant may enjoy an easement over land retained by the landlord
and vice-versa as in this case there is unity of ownership but no
unity of possession.13 Once the dominant tenement and servient
tenement come into the ownership and possession of the same
person, any easement over the servient tenement is extinguished.
9
[1993] 4 All ER 157.
10
11
[1888] 22 Ø.B.D 224 at 236.
12
Supra note 8, at 398.
13
Ibid.
7.2.3 The Easement must Accommodate the Dominant

Tenement
For an alleged right to qualify as an easement, it must

accommodate i.e., benefit the dominant tenement as a tenement.
This requirement makes it clear that easements are rights which
attach to land and not to persons. Thus, any alleged easement
must confer a benefit on the land as such and not merely on the
person who currently owns the land. The general idea is that
the alleged easement must benefit the user of land, the value of
the land or the mode of occupation of the land.
According to Megarry’s Manual of the Law of Real
Property, the test is whether the right makes the dominant
tenement a better and more convenient tenement.14 There must
be a connection or nexus between the user of the dominant
tenement and the enjoyment of the right. This may be established
by showing that the general utility of the dominant tenement has
been improved for example, by giving a means of access or
light.
The right must not confer a purely personal advantage on
the owner of the dominant tenement. In Hill v. Tupper,15 the
owner of a canal granted the plaintiff the sole and exclusive
right to put or use pleasure boats on the canal for profit. The
defendant without any authority put rival boats on the canal. It
was held that Hill’s right amounted to a mere personal advantage
or a licence not a right attaching to land itself. He could not sue
Tupper as the right was not an easement. The right was not
sufficiently connected with the land so as to amount to an
easement. It has been observed that if Hill had been granted the
right to cross and recross the canal to get to and from his land
then an easement could have been created.16
7.2.4 The Easement must be Capable of Forming the Subject

Matter of the Grant
This is an all embracing criterion. According to Dixon, technically

the point is that every easement must be capable of being
expressly conveyed by deed; it must lie in grant.17 What it means
in practice is that there are certain types of rights which previous
case law has suggested are intrinsically unsuitable for inclusion
in the list of easements.
14
Ibid., at p. 396.
15
(1862) 2H EC 121.
16
17
According to Megarry’s Manual of the Law of Real
Property, the above criterion involves the following points:18
(a) That there must be a capable grantor and grantee. The
person or entity granting an easement must have the
capacity to do so. Equally, the grantee must have legal
capacity to receive a grant.
(b) The right must be sufficiently definite. A vague or
inexact right cannot exist as an easement; for example,
there is no easement of privacy19 or of a general flow
of air (not in a defined channel) over land.20
(c) The right must be within the general nature of rights
capable of existing as easements.
The learned authors of Megarry’s Manual of the Law of Real
Property have further observed that although most easements
fall under one of well known heads of easements such as way,
light, support, etc, the list of easements is not closed.21 The right
must fall within the general characteristics of an easement. It is
not necessary that a new easement should fall under recognised
categories (way, water, light, support). What is of importance is
that the right should satisfy the four general characteristics of
an easement. New easements have from time to time been
recognised. Examples include a right to use a lavatory on
another’s land22 and the right to store coal in a coal Bunker.23
Courts are reluctant to recognise an easement which gives
the dominant tenement owner exclusive occupancy of the
servient tenement.24 Further it is unlikely that a court will recognise
an alleged easement that requires the servient tenement owner
to spend money.25 This is because an easement is a right over
the servient land for a defined purpose and is not equivalent to a
right of ownership of that land.26
7.3 Acquisition of Easements and Profits
Easements and Profits may be acquired or created by statute or

by grant, express or implied or by prescription based on long use
or presumed grant.27
18
Supra note 8, at pp. 398 - 399.
19
Ibid.
20
Ibid.
21
Browne v. Flower [1911] I Ch 219.
22
Miller v. Emcer products [1956] Ch 304.
23
Wright v. Mcadam [1949] 2 KB 744.
24
Copeland v. Greenhalf [1952] Ch 488.
25
Phipps v. Pears [1965] 1 QB 76.
26
Ibid.
27
See generally, supra note 8, at pp. 408 - 428.
7.3.1 Express Grant or Reservation
An easement is expressly granted when the owner of the

potential servient tenement grants or gives an easement over
that land to the owner of what will be the dominant tenement.
Under express reservation, the owner of the potential dominant
tenement keeps i.e., reserves an easement over that land. This
can occur where land is owned by a potential servient owner
and he then sells or leases a piece of that land to another, he
may include in that sale or lease a grant of an easement to the
purchaser.
7.3.2 Statute
Easements may be granted by an Act of Parliament, for example,

giving rights in respect of cables, pipes, sewers etc.
7.3.3 Presumed Grant or Prescription
A presumed grant may be based on the doctrine of prescription

at common law or on the doctrine of a lost modern grant or may
arise under the Prescription Act, 1832 and in each of these cases
the right is founded on long undisturbed possession or use.28
The law presumes from long enjoyment that the right had a
lawful origin in a grant. In each case the following common
criteria must be established:
(a) The use is ‘as of right.’ This is explained in the Latin
maxim nec vi, nec clam, nec precario (without force,
without secrecy, without permission). In Union
Lighterage Co. v. London Graving Dock Co., 29
secret user occurred where a dock supported by
invisible rods were sunk under the servient tenement.
In Liverpool Corporation v. H. Coghill and Son
Limited,30 a secret discharge of chemicals into a sewer
could not qualify as an easement.
(b) The user must be continuous, as far as the nature of
the right allows.31 User can be by successive owners
of the dominant tenement.
28
29
[1902] 2 Ch 557.
30
[1918] 1 Ch 307.
31
(c) The user must be by or on behalf of the owner against
another owner. If a tenant acquires an easement
against a third party, he acquires it on behalf of the fee
simple estate. If a tenant occupies the servient
tenement, an easement cannot be acquired against it,
though if user began against a fee simple owner, it
does not make it invalid for prescriptive purposes if
the land is later leased.32 As prescription rests on
acquiescence, a claim will fail if user can be proved
only when the servient land was occupied by a tenant
for the fee simple owner may not be able to contest
the user.33
At common law a grant was presumed if enjoyment dated from

time immemorial i.e., since 1189 (since the first year of the reign
of King Richard the first). This was later converted into the test
of living memory and later on a user of twenty years or more
has sufficed.34 Such a grant would not be available if at any
time since 1189 the right could have existed.35 A mechanism to
avoid the rigours of common law rule was developed by the
courts under the fiction of lost modern grant. If a claimant could
show actual enjoyment for a reasonable period, the court was
bound to presume an actual grant which was later lost.36 Twenty
years or more could be sufficient for the purpose.
In Dalton v. Henry Angus and Co. and Another,37 it was
held that a right to a lateral support from adjoining land may be
acquired by twenty years uninterrupted enjoyment for a building
proved to have been newly built, or altered so as to increase
pressure at the beginning of that time and it is so acquired if the
enjoyment is peaceable and without deception or concealment
and so open that it must be known that some support is being
enjoyed by the building.
7.3.3.1 The Prescription Act
The preamble to the Prescription Act38 provides that it is an Act

for shortening the time of prescription in certain cases. The
object of the Act was to simplify the method of acquisition of
32
Ibid.
33
Supra note 8. at p. 416.
34
35
Ibid.
36
37
[1881] 6 App. Cas 740.
38
Halsbury’s Statutes (2nd ed.), Vol. 6, p. 667.
easements by prescription by shortening the time of legal memory

by: (1) making it impossible to defeat a claim to an easement or
profit à prendre by custom, prescription or grant, or merely by
showing that it could not have existed at some point of time
since the commencement of ‘legal memory’ i.e., since the first
year of reign of King Richard the first and without obliging the
claimant to resort to the unsatisfactory fiction of lost modern
grant and by making certain periods suffice as proofs of the
existence of specified rights claimed.39 The statute has not in
any way rescinded previous practice. It has merely provided an
additional method of claiming an easement or profit à prendre.40
The claimant may now proceed under the statute or according
to the common law or under the doctrine of lost grant or by all
these methods and the present practice is to plead all these
methods alternatively.41 The Act does not enable claimants to
establish an easements or profits rights which could not be
established as such at common law.42
The Prescription Act treats easements of light differently
from other easements. Section 2 of the Act provides that an
easement (other than that of light) can be claimed where it is
actually enjoyed by any person claiming a right thereto without
interruption for the full period of twenty years and it shall not be
defeated by showing that the user began at any time prior to the
twenty years period though it may still be defeated in other ways,
for example, on the ground that it was secretive, permissive or
forceable. Section 3 of the Act deals with the easement of light.
The section provides that where a right of light has been actually
enjoyed for a full period of twenty years without interruption the
right becomes absolute and indefeasible unless enjoyed by written
consent or agreement.
7.4 Recording of Memorial of Easement in a Certificate of

Title
Section 50 of the Lands and Deeds Registry Act provides how

memorial of easement should be recorded in a certificate or
provisional Certificate of Title. The section provides that:
39
Ibid.
40
41
Ibid., at p. 699.
42
Whenever any easement or incorporeal right, other
than an annunity or rent-charge, in or over any
land comprised in a Provisional Certificate or a
Certificate of Title, is created for the purpose of
being annexed to, or used and enjoyed together
with, other land, the Registrar shall enter a
memorial of the instrument creating such easement
or incorporeal right upon such Provisional
Certificate or Certificate of Title and also upon any
Provisional Certificate or Certificate of Title of such
other land, and such memorial shall, as from the
date of entry thereof, have the effect of including
such easement in such Provisional Certificate or
Certificate of Title of such other land as appurtenant
to the land therein described.
7.5 Case Law
(a) Two Types of Easements - Negative and Positive

Easement - No Right of Protection against Weather
Phipps v. Pears [1964] 2 All ER 35
[The facts of the case appear from the judgment of LORD DENNING,
MR]
In the 1920’s there were two old houses in Warwick, standing

side by side, Nos 14 and 16, Market Street. They were both
owned by a Mr Field. About 1930 he pulled down No 16 but left
the old No 14 standing. He erected a new house at No 16,
Market Street, with its flank wall flat up against the old wall of
No 14. He did not bond the two walls together, but the new wall
was built up touching the old wall of No 14. On 17 July 1931,
Mr Field conveyed the new No 16, Market Street to Helena
Field, but remained himself owner of the old No 14. Helena
Field disposed of No 16 and eventually in 1951 Mr Phipps (the
present plaintiff) bought it, as it was, standing then alongside
the old No 14. Mr Field died and his personal representative in
1957 conveyed No 14, Market Street to the governors of the
Lord Leycester Hospital.
So there were the two houses—new No 16 and old No 14—
standing side by side. In 1962 the Warwick Corporation made
an order for the demolition of old No 14, Market Street because
it was below the required standard. It was, I suppose, unfit for

human habitation. In consequence, in September, 1962, the
governors of the Lord Leycester Hospital demolished it; and
when they did so, there was left exposed the flank wall of new
No 16. This was in a very rough state. It had never been
pointed. Indeed, it could not have been because of the way it
was built, flat up against the old No 14. It had never been
rendered or plastered. So it was not weatherproof. The result
was that the rain got in and during the winter it froze and caused
cracks in the wall. The plaintiff seeks to recover for the damage
done.
In his particulars of claim the plaintiff alleged that No 16 had
a right of support from No 14 and that the defendants had
withdrawn that support. He failed on this point, because the
county court judge found that No 16 did not depend on No 14
for its support. ‘There was, in fact, no support the one for the
other. They were independent walls, untied one to the other.’
Then it was said on the plaintiff’s behalf that at any rate his
house No 16 was entitled to protection from the weather. So
long as No 14 was there, it afforded excellent protection for No
16 from rain and frost. By pulling down No 14, the defendants,
he said, had infringed his right of protection from the weather.
This right, he said, was analogous to the right of support. It is
settled law, of course, that a man who had his house next to
another for many years, so that it is dependent on it for support,
is entitled to have that support maintained. His neighbour is not
entitled to pull down his house without providing substitute support
in the form of buttresses or something of the kind, see Dalton v.
Angus. Similarly, it was said, with a right to protection from the
weather. If the man next door pulls down his own house and
exposes his neighbour’s wall naked to the weather whereby
damage is done to him, he is, it is said, liable in damages. The
case, so put, raises the question whether there is a right known
to the law to be protected—by your neighbour’s house—from
the weather. Is there an easement of protection?
There are two kinds of easement known to the law: positive
easements, such as a right of way, which give the owner of land
a right himself to do something on or to his neighbour’s land:
and negative easements, such as a right of light, which gives
him a right to stop his neighbour doing something on his
(the neighbour’s) own land. The right of support does not fall
neatly into either category. It seems in some way to partake of
the nature of a positive easement rather than a negative
easement. The one building, by its weight, exerts a thrust, not
only downwards, but also sideways on to the adjoining building
or the adjoining land, and is thus doing something to the
neighbour’s land, exerting a thrust on it; see Dalton v. Angus
((1881), 6 App Cases at p 793) per Lord Selborne, LC. But a
right to protection from the weather (if it exists) is entirely
negative. It is a right to stop your neighbour pulling down his
own house. Seeing that it is a negative easement, it must be
looked at with caution, because the law has been very chary of
creating any new negative easements.
Take this simple instance: Suppose you have a fine view
from your house. You have enjoyed the view for many years.
It adds greatly to the value of your house. But if your neighbour
chooses to despoil it, by building up and blocking it, you have no
redress. There is no such right known to the law as a right to
prospect or view: see Bland v. Moseley. The only way in
which you can keep the view from your house is to get your
neighbour to make a covenant with you that he will not build so
as to block your view. Such a covenant is binding on him by
virtue of the contract. It is also binding in equity on anyone who
buys the land from him with notice of the covenant: but it is not
binding on a purchaser who has no notice of it, see Leech v.
Schweder. Take next this instance from the last century. A
man built a windmill. The winds blew freely on the sails for
thirty years working the mill. Then his neighbour built a
schoolhouse only twenty-five yards away which cut off the
winds. It was held that the miller had no remedy: for the right
to wind and air, coming in an undefined channel, is not a right
known to the law, see Webb v. Bird. The only way in which the
miller could protect himself was by getting his neighbour to enter
into a covenant. The reason underlying these instances is that if
such an easement were to be permitted, it would unduly restrict
your neighbour in his enjoyment of his own land. It would hamper
legitimate development, see Dalton v. Angus ((1881), 6 App.
Cas at p. 824) per Lord Blackburn. Likewise here, if we were
to stop a man pulling down his house, we would put a brake on
desirable improvement. Every man is entitled to pull down his
house if he likes. If it exposes your house to the weather, that is
your misfortune. It is no wrong on his part. Likewise every
man is entitled to cut down his trees if he likes, even if it leaves
you without shelter from the wind or shade from the sun. There
is no such easement known to the law as an easement to be

protected from the weather. The only way for an owner to
protect himself is by getting a covenant from his neighbour that
he will not pull down his house or cut down his trees. Such a
covenant would be binding on him in contract; and it would be
enforceable on any successor who took with notice of it, but it
would not be binding on one who took without notice.
(b) Essentials of an Easement
The established criteria for determining whether an alleged right is capable

of amounting to an easement were discussed in Re Ellenborough Park
Re Davies (deceased) Powell and Others v. Maddison and Another.43
[The facts of the case appear from the judgment of SIR RAYMOND
EVERSHED, MR ]
…The substantial question raised in this appeal is whether the

respondent, or those whom he has been appointed to represent,
being the owners of certain houses fronting on, or, in some few
cases, adjacent to, the garden or park known as Ellenborough
Park in Weston-super-Mare, have any right known to the law,
and now enforceable by them against the owners of the park, to
the use and enjoyment of the park to the extent and in the manner
later more precisely defined. Both the premises now belonging
to the respondent, or to the owners for whom he acts as
champion, [who will be referred as the ‘owners of the houses’]
and also the park itself, were originally part of an estate known
as the White Cross Estate. The houses in question were built
and the park laid out in the middle of the last century. None of
the owners of the houses is an original grantee from the
proprietors of the White Cross Estate. Similarly, the present
owners of the park are the successors in title of the original
grantors of the premises of the house owners. A second question
is also raised in the appeal. It is, on the basis that the owners of
the houses have an enforceable right in law against the owners
of the park, in what proportions between the owners of the
houses on the one side, and the owners of the park on the other,
should certain sums of money be divided, which have been paid
to the latter by the War Office, in respect of the occupation of
43
[1955] 3 All ER 667.
the park under requisition by the military authorities during the
war? Danckwerts, J who came to a conclusion on the main
question in favour of the owners of the houses, also made an
order as to part of these compensation moneys: but as to the
rest directed an inquiry of a somewhat complicated character,
for the purpose of ascertaining how the remainder of such
moneys should be divided between the owners of the park, on
the one hand, and the owners of the houses, on the other hand.
Although the payment of the compensation moneys was the
circumstance which gave rise, in fact, to the present substantial
question in the case, this court has been absolved from any
determination of the question of their division: for, with a view
to avoiding the considerable costs of the inquiry which has been
directed, the parties before us have agreed on a compromise of
that question which the court is prepared to approve: and the
compromise also extends to the application of those moneys in
the alternative event of this court arriving at a different view
from that of Danckwerts, J on the main question.
The plaintiffs in the action are the present owners of the
garden or park; but they hold the property as trustees on certain
trusts under which the first defendant, Mrs Maddison, is one of
the beneficiaries. She has accordingly been the appellant in this
court. The second defendant, Mr Fred Allen, who is the
respondent to this appeal, was appointed by Danckwerts, J to
represent for the purposes of the proceedings ‘all persons
claiming to have any rights of user of the … property known as
Ellenborough Park as a private open space.’ In the course of
the hearing before us it appeared that Mr Allen is in fact not the
owner of any of the relevant premises, but is a tenant of one of
the houses which belongs to a limited company. It was agreed
by learned counsel before us that the limited company should be
added as a defendant to the proceedings, and its name added to
the brief of Mr Goff, who appeared for the respondent and who
informed us that he had been sufficiently instructed by the
company. The appeal proceeded before us accordingly on the
basis that an owner of one of the houses was before the court,
and the order which will be drawn up must provide for the
necessary amendment of the proceedings.
The substantial question in the case, which we have briefly
indicated, is one of considerable interest and importance. It is
clear from our brief recital of the facts that if the owners of the
houses are now entitled to an enforceable right in respect of the
use and enjoyment of Ellenborough Park, that right must have

the character and quality of an easement as understood by, and
known to, our law. It has, therefore, been necessary for us to
consider carefully the qualities and characteristics of easements,
and for such purpose to look back into the history of that category
of incorporeal rights in the development of English real property
law. It may be fairly assumed that in Duncan v. Louch (1845)
(6 QB 904) the Court of Queen’s Bench in 1845, and particularly
Lord Denman, CJ who delivered the first judgment in the court,
was of opinion that such a right as the owners of the houses
claim was capable of fulfilling the qualifying conditions of an
easement. Buckley, J in 1904 in Keith v. Twentieth Century
Club Ltd (90 LT 775) answered certain questions which Byrne,
J had ordered to be set down to be argued before the court,
themselves depending on the assumption that such a right could
exist in law. On the other hand, Farwell, J, a judge peculiarly
experienced and learned in real property law, on two occasions,
namely, in 1903 in International Tea Stores Co v. Hobbs ([1903]
2 Ch 165) and in 1905 in A-G v. Antrobus ([1905] 2 Ch 188)
used language appearing to treat as axiomatic the proposition
that a right which should properly be described as a jus
spatiandi was a right excluded by English law, as by Roman
law, from the company of servitudes. The four cases which we
have mentioned must be considered hereafter at greater length.
But it can be said at once that, with the possible exception of the
first, none of them constitutes or involves a direct decision on
the question now before us: and although the existence of
gardens surrounded by houses, the owners or occupiers of which
enjoy in practice the amenities of the gardens, is a well-known
feature of town development throughout the country, no other
case appears to have come before the courts in which the validity
of the rights in fact enjoyed in the gardens has ever been
tested…The four characteristics stated by Dr Cheshire
correspond with the qualities discussed by Gale in his second
chapter, sections 2, 5, 3, and 6 and 8 respectively. Two of the
four may be disregarded for present purposes, viz, the first and
the third. If the garden or park is, as it is alleged to be, the
servient tenement in the present case, then it is undoubtedly
distinct from the alleged dominant tenements, viz, the freeholds
of the several houses whose owners claim to exercise the rights.
It is equally clear that if these lands respectively constitute the
servient and dominant tenements, then they are owned by
different persons. The argument in the case is found accordingly
to turn on the meaning and application to the circumstances of
the present case of the second and fourth conditions; i.e., first,
whether the alleged easement can be said in truth to
‘accommodate’ the dominant tenement, in other words, whether
there exists the required ‘connection’ between the one and the
other; and, second, whether the right alleged is ‘capable of
forming the subject-matter of a grant’. The exact significance
of this fourth and last condition is, at first sight perhaps, not
entirely clear. As between the original parties to the ‘grant’ it is
not in doubt that rights of this kind would be capable of taking
effect by way of contract or licence. But for the purposes of
the present case, as the arguments made clear, the cognate
questions involved under this condition are: whether the rights
purported to be given are expressed in terms of too wide and
vague a character; whether, if and so far as effective, such
rights would amount to rights of joint occupation or would
substantially deprive the owners of the park of proprietorship or
legal possession; whether, if and so far as effective, such rights
constitute mere rights of recreation, possessing no quality of
utility or benefit; and on such grounds cannot qualify as
easements….
We pass accordingly to a consideration of the first of Dr
Cheshire’s conditions—that of the accommodation of the alleged
dominant tenements by the rights as we have interpreted them.
For it was one of the main submissions by counsel for the owners
of the park that the right of full enjoyment of the park granted to
the purchaser by the conveyance of 23 December 1864, was
insufficiently connected with the enjoyment of the property
conveyed in that it did not subserve some use which was to be
made of that property; and that such a right accordingly could
not exist in law as an easement. In this part of his argument,
counsel was invoking a principle which is, in our judgment, of
unchallengeable authority, expounded, in somewhat varying
language, in many judicial utterances, of which the judgments in
Ackroyd v. Smith (1850) (10 CB 164) are, perhaps, most
commonly cited. We think it unnecessary to review the authorities
in which the principle has been applied; for the effect of the
decisions is stated with accuracy in Dr Cheshire’s book at
p. 457. After pointing out that “one of the fundamental principles
concerning easements is that they must be not only appurtenant
to a dominant tenement, but also connected with the normal
enjoyment of the dominant tenement’, and referring to certain

citations in support of that proposition the learned author
proceeded:
We may expand the statement of the principle thus:

a right enjoyed by one over the land of another
does not possess the status of an easement unless
it accommodates and serves the dominant
tenement, and is reasonably necessary for the
better enjoyment of that tenement, for if it has no
necessary connection therewith, although it confers
an advantage upon the owner and renders his
ownership of the land more valuable, it is not an
easement at all, but a mere contractual right
personal to and only enforceable between the two
contracting parties.
Can it be said, then, of the right of full enjoyment of the park in

question which was granted by the conveyance of 23 December
1864, and which, for reasons already given, was, in our view,
intended to be annexed to the property conveyed to Mr Porter,
that it accommodated and served that property? It is clear that
the right did, in some degree, enhance the value of the property
and this consideration cannot be dismissed as wholly irrelevant.
It is, of course, a point to be noted; but we agree with the
submission of counsel for the owners of the park that it is in no
way decisive of the problem; it is not sufficient to show that the
right increased the value of the property conveyed unless it is
also shown that it was connected with the normal enjoyment of
that property. It appears to us that the question whether or not
this connection exists, is primarily one of fact, and depends largely
on the nature of the alleged dominant tenement and the nature
of the right granted. As to the former, it was in the contemplation
of the parties to the conveyance of 1864 that the property
conveyed should be used for residential and not commercial
purposes.…. As to the nature of the right granted, the
conveyance of 1864 shows that the park was to be kept and
maintained as a pleasure ground or ornamental garden, and that
it was contemplated that it should at all times be kept in good
order and condition and well stocked with plants and shrubs;
and the vendors covenanted that they would not at any time
thereafter erect or permit to be erected any dwelling-house or
other building (except a grotto, bower, summer-house, flower-
stand, fountain, music-stand or other ornamental erection) within
or on any part of the pleasure ground. On these facts counsel
for the owners of the park submitted that the requisite connection
between the right to use the park and the normal enjoyment of
the houses which were built around it or near it had not been
established. He likened the position to a right granted to the
purchaser of a house to use the zoological gardens free of charge
or to attend Lord’s cricket ground without payment. Such a
right would undoubtedly, he said, increase the value of the
property conveyed, but could not run with it at law as an
easement, because there was no sufficient nexus between the
enjoyment of the right and the use of the house. It is probably
true, we think, that in neither of counsel’s illustrations would the
supposed right constitute an easement, for it would be wholly
extraneous to, and independent of, the use of a house as a house,
i.e., as a place in which the householder and his family live and
make their home; and it is for this reason that the analogy which
counsel sought to establish between his illustrations and the
present case cannot, in our opinion, be supported. A much closer
analogy, as it seems to us, is the case of a man selling the freehold
of part of his house and granting to the purchaser, his heirs and
assigns, the right, appurtenant to such part, to use the garden in
common with the vendor and his assigns. In such a case the
test of connection, or accommodation, would be amply satisfied;
for just as the use of a garden undoubtedly enhances, and is
connected with, the normal enjoyment of the house to which it
belongs, so also would the right granted, in the case supposed,
be closely connected with the use and enjoyment of the part of
the premises sold. Such, we think, is in substance the position in
the present case. The park became a communal garden for the
benefit and enjoyment of those whose houses adjoined it or were
in its close proximity. Its flower beds, lawns and walks were
calculated to afford all the amenities which it is the purpose of
the garden of a house to provide; and apart from the fact that
these amenities extended to a number of householders instead
of being confined to one (which on this aspect of the case is
immaterial) we can see no difference in principle between
Ellenborough Park and a garden in the ordinary signification of
that word. It is the collective garden of the neighbouring houses
to whose use it was dedicated by the owners of the estate and
as such amply satisfied, in our judgment, the requirement of
connection with the dominant tenements to which it is

appurtenant. The result is not affected by the circumstance
that the right to the park is in this case enjoyed by some few
houses which are not immediately fronting on the park. The
test for present purposes, no doubt, is that the park should
constitute in a real and intelligible sense the garden (albeit the
communal garden) of the houses to which the enjoyment is
annexed. But we think that the test is satisfied as regards these
few neighbouring, though not adjacent, houses. We think that
the extension of the right of enjoyment to these few houses
does not negative the presence of the necessary “nexus”
between the subject-matter enjoyed and the premises to which
the enjoyment is expressed to belong.
Counsel for the owners of the park referred us to, and to
some extent relied on, Hill v. Tupper (1863) (2 H & C 121), but
in our opinion there is nothing in that case contrary to the view
which we have expressed. In that case the owner of land
adjoining a canal was granted the exclusive right to let boats out
for hire on the canal. He did so and then sought to restrain a
similar activity by a neighbouring landowner. He sought to
establish that his grant constituted an easement but failed. As
Pollock, CB said in his judgment (2 H & C at p. 126): ‘… it is
not competent to create rights unconnected with the use and
enjoyment of land, and annex them to it so as to constitute a
property in the grantee.
It is clear that what the plaintiff was trying to do was to set
up, under the guise of an easement, a monopoly which had no
normal connection with the ordinary use of his land, but which
was merely an independent business enterprise. So far from
the right claimed sub-serving or accommodating the land, the
land was but a convenient incident to the exercise of the right.
For the reasons which we have stated we are unable to accept
the contention that the right to the full enjoyment of Ellenborough
Park fails in limine to qualify as a legal easement for want of the
necessary connection between its enjoyment and the use of the
properties comprised in the conveyance of 1864 and in the other
relevant conveyances.
We turn next to Dr Cheshire’s fourth condition for an
easement—that the right must be capable of forming the subject-
matter of a grant. As we have earlier stated, satisfaction of the
condition in the present case depends on a consideration of the
questions, whether the right conferred is too wide and vague,
whether it is inconsistent with the proprietorship or possession
of the alleged servient owners, and whether it is a mere right of
recreation without utility or benefit.
To the first of these questions the interpretation which we
have given to the typical deed provides, in our judgment, the
answer; for we have construed the right conferred as being
both well defined and commonly understood. In these essential
respects the right may be said to be distinct from the indefinite
and unregulated privilege which, we think, would ordinarily be
understood by the Latin term ‘jus spatiandi’, a privilege of
wandering at will over all and every part of another’s field or
park, and which, though easily intelligible as the subject-matter
of a personal licence, is something substantially different from
the subject-matter of the grant in question, viz, the provision for
a limited number of houses in a uniform crescent of one single
large but private garden. Our interpretation of the deed also
provides, we think, the answer to the second question; for the
right conferred no more amounts to a joint occupation of the
park with its owners, no more excludes the proprietorship or
possession of the latter, than a right of way granted through a
passage or than the use by the public of the gardens of Lincoln’s
Inn Fields (to take one of our former examples) amount to joint
occupation of that garden with the London County Council, or
involve an inconsistency with the possession or proprietorship
of the council as lessees. It is conceded that in any event the
owners of the park are entitled to cut the timber growing on the
park and to retain its proceeds. We have said that in our judgment,
under the deed, the flowers and shrubs grown in the garden are
equally the property of the owners of the park. We see nothing
repugnant to a man’s proprietorship or possession of a piece of
land that he should decide to make of it and maintain it as an
ornamental garden, and should grant rights to a limited number
of other persons to come into it for the enjoyment of its
amenities….
As appears from what has been stated earlier the right to
the full enjoyment of Ellenborough Park, which was granted
by the conveyance of 1864 and other relevant conveyances,
was in substance no more than a right to use the park as a
garden in the way in which gardens are commonly used. In a
sense, no doubt, such a right includes something of a jus spatiandi
inasmuch as it involves the principle of wandering at will round
each and every part of the garden except, of course, such parts
as comprise flower beds, or are laid out for some other purpose,
which renders walking impossible or unsuitable. We doubt,
nevertheless, whether the right to use and enjoy a garden in this
manner can with accuracy be said to constitute a mere jus
spatiandi. Wandering at large is of the essence of such a right
and constitutes the main purpose for which it exists. A private
garden, on the other hand, is an attribute of the ordinary
enjoyment of the residence to which it is attached, and the right
of wandering in it is but one method of enjoying it. On the
assumption, however, that the right now in question does
constitute a jus spatiandi, or that it is analogous thereto, it
becomes necessary to consider whether the right which is in
question in these proceedings is, for that reason, incapable of
ranking in law as an easement….
Duncan v. Louch, on the other hand, decided more than a
hundred years ago but not, as we have observed, quoted to
Farwell, J in either of the two cases which we have cited, is
authoritative in favour of the recognition by our law as an
easement of a right closely comparable to that now in question
which, if it involves in some sense a ‘jus spatiandi’, is
nevertheless properly annexed and appurtenant to a defined
hereditament. Duncan v. Louch was an action brought by the
plaintiff as owner of premises, No 15 Buckingham Gate, Adelphi,
London, on account of obstruction by the defendant of what the
plaintiff alleged to be a right of way from Buckingham Gate
over or across Terrace Walk to a watergate on the Thames
River. On the trial before Wightman, J it was objected on the
defendant’s part that, though the plaintiff had alleged a right of
way from terminus to terminus, the right which he had in fact
proved under his documents of title was a right to use Terrace
Walk for the purposes of pleasure, that is, to pass and repass
over every part of the close. The objection was overruled by
the trial judge. The plaintiff showed cause before the Queen’s
Bench why the rule nisi obtained by the defendant for a verdict
in his favour should be discharged; and the matter, as so often
was the case in like circumstances, strictly turned on the narrow
question whether the alleged variance between the allegation
and the proof was fatal to the plaintiff’s case. The decision in
the plaintiff’s favour was to the effect that, although the right
proved exceeded the allegation, nevertheless the former
necessarily embraced the latter. The argument on the
defendant’s part thus appears from the report (6 QB at p. 910):
If this be a right of way, it is a right only of using
the way for the purpose of passing from terminus
to terminus, and not of walking for pleasure
between the intermediate points. But the right is
in fact one of a kind altogether different. It is like
the privilege which the builder of a square, who
reserves the centre for a garden common to all
the houses, grants to the owners and tenants of
the houses of walking about the garden, on
condition of keeping it in order.
Whether Mr Peacock’s argument assumed that such a right as

he had cited by way of analogy was one recognised by the law,
Lord Denman, CJ in his judgment, in terms, so held. He said
(ibid., at p. 913):
I think there is no doubt in this case. Taking the

right, as Mr Peacock suggests, to be like the right
of the inhabitants of a square to walk in the square
for their pleasure … I cannot doubt that, if a
stranger were to put a padlock on the gate and
exclude one of the inhabitants, he might complain
of the obstruction …
Similarly, Patteson, J (ibid):
I do not understand the distinction that has been

contended for between a right to walk, pass and
repass forwards and backwards over every part
of a close, and a right of way from one part of the
close to another. What is a right of way but a right
to go forwards and backwards from one place to
another?
And Coleridge, J in his judgment, described the right proved as

an ‘easement’. The reasoning of the decision and the
circumstances of the case, no less than the language used,
particularly by Lord Denman, CJ involve acceptance as an
easement of a right such as that with which, according to our
interpretation of the effect of the relevant deeds, we are here
concerned.
The remaining one of the four cases mentioned at the
beginning of this judgment, Keith v. Twentieth Century Club
Ltd, is, however, in our view, of much less assistance. There,

the plaintiffs were owners and occupiers of two rows of houses
in London and claimed the right to use the garden between these
rows. The plaintiffs sought in the action an injunction to restrain
the defendants (who were owners of certain other houses in
one of the rows and carried on the business there of a proprietary
ladies’ club) from authorising members of the club to use the
garden: and the questions formulated by Byrne, J, in an order
made by consent….
For the reasons which we have stated, Danckwerts, J came,
in our judgment, to a right conclusion in this case and accordingly
the appeal must be dismissed.
(c) Essential Characteristics of An Easement - Prescription

As A Mode of Acquisition of An Easement
The essential characteristics of an easement were also discussed in the

Zambian High Court case of Chona v. Evergreen Farms Limited.44
The case also involved prescription as a mode of acquisition of an
easement.
[The facts of the case appear from the Judgment of CHITENGI, J, as

he then was]
On the 11th June, 1996 the plaintiff took an Originating summons

out of the Principal Registry claiming right of way to and from
Lusaka over Farm No. 681 which is adjacent to his Farm No.
677A Lusaka West which right of way he has undiputedly
exercised and used since he bought the Farm No. 677A aforesaid
in 1969. The affidavit pleads that as owner of the Farm No.
677A Lusaka West, he and his servants, agents and relatives
are entitled to the usual right of way to and from Lusaka on foot
or by vehicles over the road which passes through the adjacent
Farm 681 owned by the defendant for sole purpose of gaining
access to and from the said Farm No. 677A.
The plaintiff gave both affidavit and viva voce evidence. He
testified that since 1969 he has been the beneficial owner of sub
division A of Farm 677 which is adjacent to Farm No. 681/Rem
owned by the defendant. At the time he took occupation of the
said Farm 677 in 1969 he found that the vendor and his
predecessor had been allowed by the previous owners of the
44
1996/HP/2727.
Farm No. 681/Rem to pass over a road which passes through
Farm No. 681/Rem on access road to and from Lusaka. His
servants, agents, relatives and he have been exercising the right
of way over Farm 681/Rem. Its previous owners, Boers and
English men created no problem over the use of the access
road.
Now servants and agents of the defendant have tried to stop
him, his servants, agents and relatives from exercising the right
of way and at times the defendants servants and agents have
used or threatened violence to stop him, his servants agents and
relatives from exercising their rights. He is most astonished by
the hostility of the defendant because he expected more friendly
neighbours from Indians who are the shareholders of the
defendant than from whites.
The Office of the Commissioner of Lands advised the parties
as of the access road but occasional interference and obstruction
of the road by the defendant continued from time to time. On
9th May, 1996, a meeting to resolve the problem was held
between his advocates and two shareholders of the defendant
one of whom was one Yacoup Patel who promised that there
would be no interference as from 13th May, 1996. Interference
has In fact continued for example about 25th May, 1996 his
servants Patrick Silewo and Arnold Musulumba were prevented
by the servants of the defendant from using the right of way to
access Farm No. 677A. The road over which he has the right
of way is clearly marked on the maps obtained from the
Commissioner of lands and was identified at. the meeting of 9th
May, 1996 aforesaid.
The plaintiff’s farm is bounded by other farms other than the
defendants farm which is to the north of the plaintiff’s farm. To
the south there is Farm No. 676 belonging to Mr Mwiinga, to
the East there are the remaining extent of Farm 677 and Farm
677B, to the North there are also other Farms 681 and 680
adjacent to the remaining of extent 681.
There were only cattle grids until the road reached the
plaintiffs gates. For twenty six years there was no problem with
the access road until the defendant took over the Farm and
closed the access road.
When trouble started he got a letter by hand of Police from
West Wood Police Station and written by Mr Silungwe, the
Officer-in-charge of Planning Office (DW 2), on 19th
September, 1995 accusing him of trespassing on the defendants
farm. The letter was dated 15th August 1995. He wrote to DW

2 the letter exhibit MIP to the affidavit in opposition explaining
how he bought the farm and how he was then using the access
road. As a result in a letter dated 29th September 1995 DW 2
suggested to realign the road in order to provide access to his
farm. He went to see DW 2 on 10 October 1995. DW 2 spoke
at length to the defendant on the phone. DW 2 then drew a new
access road along the eastern side of the defendant’s farm. He
was satisfied because for some weeks the defendant opened
the new access on the eastern side (hereinafter referred was
the boundary road). Later the defendant closed the boundary
road altogether. The defendant wants a piece of land from the
plaintiff in exchange for the boundary road...
The defendant called three witnesses. The first defence
witness was Ayub Ibrahim Patel the farm Manager. He testified
that he has been at the farm for three years. The farm was
purchased in 1994. His neighbours are plaintiff’s Farm 677B,
Choondo Farm 677A and Mike Faddy Farm 681A. The defendant
is the remaining extent. The plaintiff and Mr Choondo are to the
South and Mike Faddy is to the North. From the main road to
the farm gate there Is an access road which passes between
Farms 682 and 681A which belong to Mr Mike Faddy. The
access road was created by the government. This access road
is part of 681A. This access road is for the farm where they
are. During his stay he saw one or two cars pass saying they
were going to the plaintiff’s farm. He has never seen the plaintiff
himself pass on the road.
The road on the notice to produce dated 15th April 1997
marked ‘Existing road reserve’ did not in fact exist. It was a fire
guard. He became aware of the road when the Court visited
the farm with the parties. He is aware of the access road in the
map attached to the affidavit in reply. This road was approved
on 10 October 1995 after a meeting the defendant’s certificate
of title shows no change of beacons with the road approval. He
has not prevented the plaintiff from using the road. He prevented
who bought the farm from using the road to protect the land,
animals and for security purposes.
There are other access roads, one from Kacheta School and
the other from semintel farm from Makeni road, which is not
the Government approved road but it is the access road given
by the Ministry of Lands. He accepts the access road from the
plaintiff’s farm if he is given another land and the gate is shifted.
He objects to the access road from the plaintiff’s gate passing
by the subdivisions. If the defendant is not given land then it
should be given monetary compensation.
Cross examined he said when he moved to the farm he did
not find the plaintiff using the road. People were passing through
the defendant’s farm and by the residence. He did not find out
how long the people had been using the road. He has no idea
whether the plaintiff has been using the road since 1969. He
knows that the access road is from Makeni road because there
are two fences. The fences were not given by Lands. He did
not show the Court the approval for Kacheta School access
road. He saw that the road is between a class room and a toilet.
The boundary road was approved after it had been agreed upon
but he has a problem with the agreed road. He wants
compensation…. Before this meeting the plaintiff was using
the road through the defendant’s farm. After the meeting it was
agreed that the plaintiff uses the proposed boundary road; it is
ten metres wide. He was supposed to be compensated equal
land by the plaintiff. The plaintiff was supposed to pay K30,000
per month to grade the access road. After the meeting DW2
made a map, there is no government road from the defendants
gate to the plaintiff corner. If there was it would have shown on
the defendants title deeds and the beacons would have been
moved. The map in the notice to produce dated 15th April, 1997
is dated 28th May 1993. He obtained title deeds in 1995. There
is no change to the diagram in the certificate of title. He does
not know whether there are any rights registered in respect of
the access road. The access road has not been constructed
because the Plaintiff came to court and he does not know why.
There is no access road approved by the Government and so he
requests compensation. He is giving land. He searched the
Registry of Lands and there are no rights registered relating to
any existing access road.
Cross examined he said that as a result of the meeting DW
2 did the proposed access road. The Plaintiff used to pass through
the defendant’s farm but he does not know for how long. The
map on his certificate of title shows walking tracks across his
farm and across boundaries. The defendant’s neighbour has
access through the farm on the walking tracks. What the
document has done is to remove the access road from the middle
of the farm to the boundary. The defendant requests
compensation because it is losing land….
Mr Mumba raised the issue that the plaintiff has abandoned

his claim of right of way through the defendant’s farm and now
seeks right of way at the edge of the defendants farm. If I hold
that the plaintiff has proved a case not as pleaded then of course
his claim must fail. I have given my anxious consideration to Mr
Mumba’s submissions on this issue. I find these submissions
untenable. The plaintiff’s claim is for right of way through the
defendant’s farm. The road I have referred to as the boundary
road is still on the defendant’s farm. The fact that the plaintiff is
prepared to accept a right of way through another part of the
defendants’ farm does not amount to the plaintiff abandoning
his claim and is not fatal to his case. What the plaintiff seeks is
a right of way through the defendant’s farm to the High Way to
and from Lusaka. Whether this right of way is in the middle or
at the edge of the defendant’s farm is immaterial to the plaintiff.
So the fact that the plaintiff is not insisting on the road he says
he has been using since 1969 does not amount to abandoning his
claim for right of way over the defendant’s farm. Indeed, it
would be unreasonable on the part of the plaintiff to insist that
he will use no other passage on the defendants farm than the
one he says he has been using before. When I visited the
plaintiff’s farm and the defendant’s farm I saw that there were
some developments going on in the area of the road the plaintiff
said he had been using. As this road passes by the main house
one would not insist, that the defendant, should not develop that
part of the farm for the only reason of providing the plaintiff
right of way….
Mr Mumba submitted that there are many other routes the
plaintiff can use to get to the Lusaka High Way. The first
defendant’s witness also talked about an access road to the
plaintiff’s farm from Makeni road. The defence witness, however,
never pointed out this access road to me and where it starts
from the plaintiff’s farm to Makeni road and did not say whether
Makeni road is adjacent to the plaintiff’s farm or whether the
alleged access road passes through other farms and if so who
the owners of these farms are. In result I find that on the evidence
the alleged access road referred to by the first defence witness
is a mere fiction.
As regards Mr Mumba’s submission that the plaintiff has
many other routes to use I say that this submission, without
more, glosses over the legal principles involved in matters of
this nature. The issue is not whether the plaintiff can use any
route, but whether a person leaving the plaintiff’s farm can use
the other routes suggested to and from the Lusaka High Way.
A right of way is basically an easement. For there to be an
easement it is trite that there must be a dominant and a servient
tenement.
In other words the easement cannot exist in gross, that is to
say not appurtenant to any land. Further the right must
accommodate the dominant tenement. That is to say the right
must improve the usefulness or amenity of the dominant
tenement.
I visited the parties’ farms. The plaintiff’s farm is bounded
by many farms. In relation to the Lusaka High Way only the
defendant’s farm is the servient tenement to the plaintiff’s farm
because the relationship between the two farms meets the
conditions I have referred to above. The defendant’s farm has
therefore to provide the right of way.
The routes suggested through the other farms are not available
to the plaintiff. The plaintiff cannot insist on them at law as his
farm is not a dominant tenement, to these other farms. As Mr
Silungwe, witness for the defence, I think rightly said, these are
unofficial roads. I drove on, saw and walked on some of these
roads. The routes through Mr Mwiinga’s farm, lead to nowhere.
Some are oppressive routes for the plaintiff to take. It will mean
the Plaintiff everyday threading the maze of the farms in Lusaka
West for him to reach the Lusaka High Way at great expense.
The route suggested through the Kacheta School will create a
danger to our children. I have never seen a road any where
passing through a school.
After holding that the only servient tenement to the plaintiff’s
farm is the defendant’s farm, I have now to consider whether
there existed and exists a right of way from the plaintiff’s farm
through the defendant’s farm to the Lusaka High Way. Much
evidence has been led to establish that the right of way is not
registered and does not appear on the defendant certificate of
title obtained as recently as 1995. That may be the case but the
evidence is agreed that since the defendant took possession of
the farm the defendant’s witnesses numbers one and three have
seen people from the plaintiff’s farm pass through the
defendant’s farm though they have not seen the plaintiff pass
through the defendant’s farm. And as to the period before the
defendant took possession of the farm the only witness as to
what happened was the plaintiff. The plaintiff gave evidence
that for twenty six years from 1969 to 1995 when the defendant
came and trouble started, he was using the road through the
defendant’s farm. He also testified that when he bought the
farm In 1969 he found the previous owners passing through the
defendant’s farm. This evidence is uncontroverted and as I have
no reason to doubt the veracity of the plaintiff I accept it. That
being the case I accept Mr Hakasenke’s submissions that the
plaintiff acquired an easement by prescription at common law,
the plaintiff having been an uninterrupted user for over twenty
years. Of course prescription is a rebuttable presumption but it
has not been rebutted.
The defendants said, and Mr Mumba submitted and argued
to that effect, that they are not opposed to the plaintiff using the
access road. This is untenable at law. The right of way extends
to every one living on the dominant tenement which is the
Plaintiff’s farm. And after the sub-divisions the occupants of
the sub divisions have also the right of way through the
defendant’s road. The right of way accommodates the dominant
tenement; it. improves the usefulness of the dominant tenement.
To restrict the free passage to the plaintiff and his family only
will turn the easement into a license which it is not.
In view of what I have said above the evidence and
submissions that the proposed access road cannot be effected
cannot stand. As I have already said and for the reasons I have
given the plaintiff is entitled to a right of way through the
defendant’s farm.
(d) Right of light must be acquired either by grant or

prescription and when acquired by prescription it must
be in respect of a building and defined windows or other
apertures in the nature of windows in the building
In JASAT v. PATEL,45 the plaintiff claimed damages for obstruction of

light and air to his residence. According to the plaintiff the defendant,
who owned adjoining property, at first built a tall wall and then built a
bulk store incorporating the wall. This caused a nuisance to his premises
as it obstructed fresh air and light. According to the defendant the wall
was part of the bulk store and was effected with the approval of the
Council’s authority and was occupied after a certificate to occupy was
given. Documents in support of the permission were produced. The
production of the documents, which were produced at the trial without
45
(1978) ZR 208.
the prior knowledge of the plaintiff, were objected to by the plaintiff on
the grounds of being taken by surprise, but were allowed by the court. It
was submitted that the wall prevented the plaintiff’s right to light and air
and as a result his comfort and convenience had suffered; and that the
alleged permission from the Township Council could not be a defence to
a tort of nuisance. The defendant contended that there was no evidence
as to the extent to which the wall had diminished the light.
It was held by the High Court (Sakala, J, as he was) that:
(i) A right of light must be acquired, either by grant or prescription
and when acquired by prescription it must be in respect of a
building and defined windows or other apertures in the nature
of windows in the building.
(ii) A diminution of light is not necessarily actionable for there
must be substantial privation of light, sufficient to render the
occupation of the house uncomfortable.
(iii) In determining whether there has been an infringement of a
right to light, a court is entitled to have regard to the locality
and to the higher standard of lighting of the present day and is
not confined to the rule that, so long as half a room was
adequately lit, there was no infringement.
Though the above case was mainly argued from the point of view of the
tort of nuisance the holding under (i) above is also the position under the
law relating to acquisition of an easement of light.
7.6 Summary of Chapter Seven
Servitudes involve the enjoyment of rights over another person’s

land. Easements and profits which are both interests in land, are
interests or rights entitling their owners to exercise certain rights
over the land of another.
An easement may be described as the right held by one land
owner to do something in or on the land of another or to prevent
the other land owner from doing something on his own land. A
person possesses an easement in respect of his enjoyment of
some estate or interest in a particular piece of land, and the
easement is said to be appurtenant to that land (Hansford v.
Jago [1921] 1 Ch 32). Easements may be positive or negative,
according as the right is to do something or prevent another
from doing something. Easements may be created by statute, or by
grant, express or implied, or by prescription, based on long use or
presumed grant. They may be extinguished by statute, release,
express or implied, or unity of ownership of the dominant and
servient tenements. Among the common recognisable easements

are; right of way, right of light, watercourse and support of
buildings but there is no confined list of easement and many
miscellaneous cases have been recognised. What is important
is that the alleged right must satisfy the essential characteristics
of an easement which were discussed in Re Ellenborough Park
case.
Profits a’ Prendre are rights to enter the land of another and
take therefrom, some profit of the soil or a portion of the soil
itself. The main difference between an easement and a profit is
that a profit may exist ‘in gross; i.e., belonging to a person in his
right, not as annexed to ownership of land, while an easement
must always be attached to ownership of particular land. The
other distinction is that an easement confers a right to utilise the
servient tenement in a particular manner or to prevent the
commission of some act on that tenement whereas a profit a’
prendre confers a right to take from the servient tenement,
something capable of ownership or some part of the soil of that
tenement. The chief distinction between an easement and a
licence is that a licence is generally revocable at the instance of
the person who has granted it. Moreover a licence is merely
personal and does not run with the land (King v. David, Allen
and Sons, Bill Posting Ltd, [1916] 2 AC 54).
243
Chapter Eight
LEGAL AND EQUITABLE INTERESTS IN

LAND: The Doctrine of Notice
8.0 Introduction
Common law as administered in the early common law courts

had a lot of deficiencies. These included; delays, complicated
procedures of the court system and inadequate remedies. A
body of law known as equity was developed by the Court of
Chancery to mitigate the harshness of common law by giving a
new range of rights and remedies to assist a potential litigant. It
was in the realms of property law that equity made its greatest
contribution.1 Some of the rights created by equity were:
(a) The equity of redemption – the right of a mortgagor to
redeem his property even after the legal redemption
date. This is discussed in chapter six of this book.
(b) The trust (use) – at common law if property was
transferred by a grantor to persons to hold (trustees)
for the benefit of others (beneficiaries), the trustees
were not bound to administer the trust property for the
beneficiary’s benefit. Equity, however, compelled the
trustees to administer the trust in accordance with their
conscience and if they defaulted, they were liable for
penalties.
Some of the special remedies granted in equity include injunction,
specific performance, rescission and rectification.
8.1 Background to Legal and Equitable Interests
Historically, the distinction between legal and equitable rights

was based upon the type of court in which a plaintiff might
obtain a remedy for a right over land illegally denied by the
defendant.
Certain rights that could be enforced in the common law
courts became known as legal rights. Rights which were not
enforceable in the common law courts but in the court of chancery
became known as equitable rights. What had started out as
different procedure for administration of justice eventually
1
Howarth, W., Land Law. London: Sweet and Maxwell (1994), p. 10.
developed into two sets of substantive legal principles; the

common law and equity.2
Following the enactment of the Judicature Acts of 1873 -
1875, the courts of law and equity were fused into one Supreme
Court divided into a High Court and Court of Appeal.3 All the
courts are empowered to apply rules of law and rules of equity,
but the distinction still remains in modern law.
In case of conflict between the two rules, section 25 of
Judicature Acts 1873 - 1875 provided that the rules of equity
would prevail.
In Zambia, the High Court4 and Subordinate Court5 are
enjoined to concurrently administer both the rules of common
law and the rules of equity and in case of conflict between the
two rules with reference to the same matter, the rules of equity
must prevail.
8.2 Distinction between Legal and Equitable Interest or

Rights
A legal right is a right in rem (in the thing itself) which is

enforceable against the whole world whereas an equitable right
would be enforced ‘only against a person who the Chancellor
considered was unable in good conscience to deny liability.’6
A legal right will bind every transferee of the land over which
it exists. A person entitled to enforce a legal right could exercise
it against any new owner or occupier of land. A person entitled,
to say, a right of way (an easement), would be able to enjoy that
right no matter who came to own or occupy the land over which
it existed: Mark Chona v. Evergreen Farm limited.7
An equitable right is a right in personam; it is enforceable
against certain persons only. It binds every transferee of land
except a bona fide purchaser for value of a legal estate in the
land who had no notice of the equitable right. Equitable rights
are inferior to legal rights in terms of the protection given. The
learned authors of Megarry’s Manual of the Law of Real
Property, summarise the distinction between the two rights to
be thus:
2
3
4
See section 13 of the High Court Act, Chapter 27 of the Laws of Zambia.
5
See section 15 of the Surbordinate Court Act, Chapter 28 of the Laws of Zambia.
6
7
1996/HP/2727. The case is excerpted under chapter 7 dealing with servitudes.
LEGAL AND EQUITABLE INTERESTS IN LAND 245
There is a great difference between legal and
equitable rights. This is sometimes expressed by
saying that legal rights are rights in rem, ‘equitable
rights are rights in personam.’ A legal interest in
land is a right in the land itself, so that whoever
acquires the land is bound by that right, whether
he knew of it or not. A legal right is like a live
electric wire which shocks those who touch it
whether or not they know of it. Equity on the other
hand would enforce equitable rights only against
certain persons.8
Megarry and Wade,9 have summed up the difference between

legal and equitable rights to be thus:
legal rights are good against all the world; equitable

rights are good against all persons except a bona
fide purchaser of a legal estate, for value without
notice and those claiming under such a purchaser.10
The extent to which a purchaser is bound by third party rights

when acquiring property is often determined by whether the
rights are equitable or legal. The doctrine of notice is discussed
below.
8.3 The Equitable Doctrine of Notice
The basic doctrine of notice provides that an equitable interest

will bind all persons other than ‘equity’s darling’ i.e., the bona
fide purchaser for value of the legal estate without notice. The
doctrine of notice is fundamental to property law.
In Pilcher v. Rawlins11 James, LJ pointed out that the plea
of purchaser of a legal estate for value without notice is ‘an
absolute, unqualified, unanswerable defence.’12 The burden of
proof lies on the person who would wish to rely on the defence.13
The essential features of the doctrine are:
1. Bona fide- The purchaser must act in good faith, i.e
there must be no fraud or sharp practices.
8
9
10
Ibid.
11
[1872] 7 CH 259.
12
Ibid., at p. 269.
13
Wilkes v. Spooner [1911] 2 KB 473 at 486.
2. Purchaser For Value - Purchaser includes any person

who takes the property by sale, mortgage, lease or
otherwise but excludes any acquisition by operation of
law. The learned authors of Megarry’s Manual of the
Law of Real Property have observed that the words
‘for value’ are included to show that value must have
been given, because ‘purchaser’ in its technical sense
does not necessarily imply this. ‘Purchaser’ covers
persons who receive property otherwise than by the
operations of the law (e.g., under the intestacy rules)
and so includes donees and devisees.14
3. Of a Legal Estate - The estate purchased must be a
legal estate and not a mere equitable interest.15 If the
purchaser has only an equitable interest, then even if
he has no notice, he is bound by any prior equitable
interests because equity operates on the principle that
where the equities are equal the first in time prevails.16
4. Without Notice - Notice may either be actual,
constructive or imputed.
(a) Actual Notice- A purchaser has actual notice
of all matters that have been brought to his
attention, but not facts that have come to his
attention by way of rumours.17
(b) Constructive Notice- A purchaser is under
obligation to undertake full investigation of title
before completing his purchase. He can only
plead absence of notice if he made all usual and
proper enquires. If he does not do so or is
careless or negligent, he is deemed to have
‘constructive notice’ of all matters he would have
discovered.18
A person has constructive notice of all facts
of which he could have acquired actual notice
had he made those inquires and inspections which
he ought reasonably to have made, the standard
of prudence being that of a man of business
under similar circumstances.19 The purchaser
should inspect the land and make inquires as to
14
15
Ibid., at p. 65.
16
Ibid.
17
Lloyd v. Banks [1868] 3 CH 488.
18
19
Bailey v. Barnes [1894] 1 CH 25 at 35.
anything which appears inconsistent with the title
offered by the vendor.20 The Learned Authors
of Cheshire’s Modern Law of Real Property
explain one object of investigating title to be thus:
one object of investigating title is to

discover whether the land is subject
to rights vested in persons other than
the vendor, and the equitable doctrine
of notice orders that a purchaser is
bound by any right which he would
have discovered had he made the
ordinary investigations as sketched
above. Again, if he fails to make
inquires of third persons who happen
to be in possession of the land, he is
affected with notice of all equitable
interests held by them, as, for
example, an option to purchase the
fee simple that has been granted to
a lessee already in possession.21
(c) Imputed Notice- Where a purchaser employs

an agent such as a legal practitioner, any notice
(whether actual or constructive) attributed to
the agent is imputed to the purchaser.22
Most of the requirements under the rule can
usually be satisfied and the only question usually
relates to notice i.e., whether the purchaser
had notice of the equitable right. This will be
noted from the cases excerpted under the case
law section below.
8.4 Provisions of the Lands and Deeds Registry Act Relating

to Notice
The Lands and Deeds Registry Act23 has a number of provisions

relating to notice. These are outlined below. Section 22 of the
Lands and Deeds Registry Act provides that the Land and Deeds
20
Hunt v. Luck [1902] 1 CH 428.
21
Burn, E.H., Cheshire’s Modern Law of Real Property (9th ed.). London: Butterworths Publishers Ltd (1986),
at p. 65.
22
Re The Aims Corn Charity [1901] 2 CH 750.
23
Registry (established under section 3 of the Act), shall be open

for searches. The section provides that:
(1) Subject to such regulations as the Minister may

make from time to time, the Register may during
the usual office hours be searched and examined
by anyone and certified copies of any entry may
be obtained, if required, upon payment of such
fees as may be prescribed.
(2) Where a register or part of a register is kept
other than in the form of a book, it shall be made
available for search in a convenient written form,
as a printed document or by means of an
electronic device.
Section 48 of the of the Act provides for existing encumbrances

to be noted on the certificate of title. The section provides that:
The Registrar shall note upon every Provisional

Certificate and every Certificate of Title, in such
manner as to preserve their priority, the memorials
of all unsatisified mortgages, leases and other
estates and interests, outstanding or otherwise, to
which the land is subject at the time of issuing such
Certificate, and any documents dealing with such
mortgages, leases, other estates or interests; and
in the case of a Provisional Certificate or Certificate
of Title issued to a minor, or person under other
legal disability, the Registrar shall, in such
Certificate, state the particulars of such disability
so far as he has notice or knowledge thereof.
Section 58 of the Act provides that a purchaser from a registered

proprietor shall not be affected by notice of any trust or
unregistered interest in the absence of fraud.
Except in the case of fraud, no person contracting

or dealing with or taking or proposing to take a
transfer or mortgage from the Registered
Proprietor of any estate or interest in land in respect
of which a Certificate of Title has been issued shall
be required or in any manner concerned to inquire
into or ascertain the circumstances in or the
consideration for which such Registered Proprietor
or any previous Registered Proprietor of the estate
or interest in question is or was registered, or to
see to the application of the purchase money or of
any part thereof, or shall be affected by notice,
direct or constructive, of any trust or unregistered
interest, any rule of law or equity to the contrary
notwithstanding, and the knowledge that any such
trust or unregistered interest is in existence shall
not of itself be imputed as fraud.
Section 59 provides that no liability shall accrue on a bona fide

purchaser or mortgagee on account that his vendor or mortgagor
may have become a registered proprietor through fraud, or error
or under any void or voidable instrument. The section provides
that:
Nothing in Parts III to VII shall be so interpreted

as to render subject to action for recovery of
damages, or for possession, or to deprivation of
any land in respect to which a Certificate of Title
has been issued, any purchaser or mortgagee bona
fide for valuable consideration of such land on the
ground that his vendor or mortgagor may have
become a Registered Proprietor through fraud, or
error, or under any void or voidable instrument, or
may have derived from or through a Registered
Proprietor through fraud or error, or under any void
or voidable instrument, and this whether such fraud
or error consists in wrong description of the
boundaries or of the parcels of any land, or
otherwise howsoever.
8.5 Case Law
(a) Constructive notice – Occupation of land by a tenant affects

a purchaser of land with constructive notice of all the tenant’s
rights including an agreement for sale to him by the vendor
In Mwenya and Another v. Kapinga,24 the respondent was a tenant

of the house owned by the first appellant. In a letter dated 25 August
1992, the first appellant offered the respondent to buy the house he was
occupying at the purchase price of K12 million. As a pre-condition to
the sale, the first appellant requested the respondent to pay K800,000.00
to assist her in redeeming the mortgage. The first appellant received the
money and accordingly redeemed the mortgage. After a month the
respondent sent the balance of the purchase price. The first appellant
refused to accept the money on the ground that there was delay in
paying the balance and that she had sold the house to the second appellant.
The respondent sued the first appellant and claimed for specific
performance, which was granted. The trial Judge found that the contract
of sale between the first appellant and the respondent was valid. It was
further found that since the time of completion of the sale was not a
term of the contract, there was no justification for rescinding the contract.
The first appellant appealed to the Supreme Court.
It was held, inter alia, that the occupation of land by a tenant
affects a purchaser of land with constructive notice. The case
is excerpted below.
BWEUPE, DCJ: This is an appeal by the appellant against the

judgment of the High Court granting the respondents specific
performance of a contract for the sale of Plot No. 4109
Sunningdale, Lusaka to the respondent by the 1st appellant.
The 1st appellant, Miss Jane Mwenya by a letter dated
25 August 1992, offered to sell to the respondent plot No.
4109 for the sale price of K12,000,000. As a precondition
to the sale the 1st appellant requested the respondent to pay
K800,000 to assist her in redeeming the mortgage under
which the house was at the time. The 1st appellant received
K800,000 and redeemed the mortgage. When the
respondent sent the balance of the purchase price, the 1st
24
(1998) ZR 17.
appellant refused to accept the money because the
respondent allegedly had taken too long to find the money.
The respondent has lived in that house for six (6) years
as a tenant since 7 January 1987, and had paid the
K12,000,000 into court ready to be collected by the appellant.
On 22 September 1993, a third party was added to the
proceedings, Mr Jason Randee, now a second appellant, a
person to whom the 1st appellant has allegedly sold the
house. The 2nd appellant is claiming that there is a valid
contract of sale between him and the 1st appellant in that in
October 1992, the 1st appellant sold the house to him for
K13,000,000. He paid K9,000,000 as deposit and remained
with K4,000,000 unpaid.
…We now turn to ground four. It was submitted that the
trial judge erred in law by granting the remedy of specific
performance to the respondent when there was a more
appropriate remedy of damages since there was a bona
fide purchaser for value without notice. The respondent’s
counsel argued that the learned trial judge was in order to
have decreed the remedy of specific performance in favour
of the respondent instead of damages and that the second
appellant was not a bona fide purchaser for value without
notice. He said damages would not have been sufficient to
redress the respondent’s plight. He referred to the case of
Tito Waddell,25 at p. 322 where it reads:
The question is not simply whether damages are

an ‘adequate remedy but whether specific
performance as it were will do more perfect and
complete justice than award of damages. This
is particularly so in all cases dealing with a unique
subject matter such as land.
The learned lawyer for the respondent further argued that the
2nd appellant was not a bona fide purchaser for value without
notice as he had:
(a) actual notice of a purportedly and/or allegedly failed
agreement of sale of the same property between
the 1st appellant and the respondent. He then
referred us to Halsbury’s Laws of England, para
1322 on page 887 Vol. 16, 4th Edition where the
learned author said:
25
[No. 2 1997] Ch.D p. 106.
Notice may be actual or constructive

and where the said notice is imputed
on the subsequent purchaser then the
plea of purchaser without notice is
defeated.
(b) in the alternative the 2nd appellant had constructive

notice of the fact that the respondent was in
possession as tenant of the property he too desired
to purchase.
The learned counsel argued that notice that the land is
in possession of a tenant puts the purchaser on inquiry
as to the terms of the holding and he has constructive
notice of the tenant’s rights including a possible
agreement for sale to him. He referred us to the case
of Hunt v. Luck,26 where it was held:
in that case that the occupation of land by

a tenant affects a purchaser of land with
constructive notice of all that tenants’ rights
including an agreement for sale to him by
the vendor.
It means that if a purchaser has notice
that the vendor is not in possession of the
property he must make inquiries of the
person in possession of the tenant who is in
possession - and find out from him what
his rights are and, if he does not choose to
do that then whatever title he acquires as
purchaser will be subject to the title or rights
of the tenant in possession.
We have considered this ground of appeal. It is clear from the

record and the judgment of the trial court that when the 2nd
appellant visited the property he found the respondent in
possession of the property. He had therefore constructive notice
and when he purchased the property his purchase was subject
to the respondent’s title or rights of the respondent.
We would hold as did the learned trial Judge that the 2nd
appellant was not a bona fide purchaser for value without notice.
26
[1902] 1 Ch.D. p. 428
We adopt the opinion of the learned author of Halsbury’s and
the enunciation in Tito v. Waddell; Hunt v. Luck; and other
authorities herein before adequately referred to. This ground
would also fail.
We have held in ground 3 that a letter at page 25 of the
record constituted a valid contract and that there was no basis
for rescission. We find it superflous to repeat ourselves except
to say by way of emphasis that the purported rescission was
null and void.
All in all and for reasons we have given, we would dismiss
this appeal. We confirm the trial judge’s decision ordering the
specific performance of the contract for the sale of Plot 4109,
Sunningdale, Lusaka to the respondent by the first appellant.. .
(b) Actual and Constructive Notice – Presence of tenant on

the property - failure to make inquiries - Need for due
diligence in purchasing real property
Nawakwi v. Lusaka City Council and Another, Appeal No. 26 of

2001
[The facts of this case appear from the judgment of the Supreme
Court delivered by CHIBESAKUNDA, JS]
In this appeal the appellant, Edith Nawakwi, who was the

2nd defendant before the court below is challenging the High
Court Order that Plot No. 4483, Katima Mulilo Road,
Kalundu, Lusaka, be offered for sale to the 2nd respondent
who was the plaintiff before the lower court at the price
which Lusaka City Council the 1st respondent now who were
the 1st defendant in the court below was offered to the
appellant in the purported sale and that the 2nd respondent
be afforded 90 days within which to pay the purchase price.
The claim before the lower court by the 2nd respondent
was inter alia for:
1. Damages for trespass on the plaintiff’s premises Plot
No. 4483 Katima Mulilo Road, on Saturday 9th May
1994 by the 1st Defendant’s servants and/or agents
employees;
2. Damages for wrongful eviction, consequent
inconvenience, pain distress suffered, damage to some
of her property as a result;
3. A declaration that the decision to sell House No.

4483 Katima Mulilo Road, Kalundu Lusaka in the
Lusaka Province of Zambia of which she has been
and is a sitting tenant to the Hon. Edith Nawakwi
without giving an option to purchase same is an
unreasonable exercise of discretion by the Lusaka
City Council as a Local Authority that, inter alia,
administers public property rendering the purported
sale null and void ab initio; and
4. Alternatively a declaration that the plaintiff be given
another house by the 1st defendant of the same
standard whereat she should exercise her option to
purchase the same.
Before the High Court the parties agreed to proceed by way of

summary trial and agreed on a set of facts:
The agreed facts are these:
Mrs Sikanyika hereinafter referred to as the

plaintiff was a sitting tenant of Plot No. 4483
Katima Mulilo Road at the time that this dispute
arose. She applied to then Minister for Local
Government requesting to be allowed to purchase
the said house in a letter dated 15th October
1992. On 12th November 1992 she received a
reply from the Acting Director of Housing
informing her that the ban on sale of council
houses was still in force.
On 12th November 1992 Hon. Edith Nawakwi
of Kayivwambile Enterprises Limited hereinafter
referred to as the 2nd defendant applied to the
Minister of Local Government and Housing to
purchase the same Plot No. 4483, Katima Mulilo
Road.
On the 21st of January 1993 the 2nd defendant
received a letter offering her Plot No. 4483.
In a letter dated 2nd April 1993 the plaintiff
appealed to the Minister against what she
considered an injustice. She wrote another appeal
letter to the Town Clerk dated 7th May 1993.
There was also further correspondence between
the plaintiff and the City Council. In the meantime
the 2nd defendant had also been corresponding
with the City Council asking for vacant possession
as seen in their affidavit filed in this court which
led to the attempts to evict the plaintiff and
applications for injunctions which are on the
courts records.
According to the record, this matter, which had initially been

commenced before the learned High Court Commissioner, was
then transferred to the learned trial Judge, who upon being seized
with this matter, decided to proceed by way of summary trial.
He invited submissions which were eventually presented to the
learned trial Judge. On the facts as agreed and submissions by
both parties, the learned trial Judge ruled in favour of the 2nd
respondent.
Now before us, Mr Sikatana, learned counsel for the
appellant, has intriguingly raised five points. He argued, urging
this court, to exercise moral judgment as opposed to legal
judgment to set aside the lower court’s judgment. The first
argument is that since there was an alternative remedy that the
court considered, that is, for the 1st respondent to allocate the
alternative house to the 2nd respondent; since this alternative
remedy would not have been prejudicial against the 2nd
respondent, the court now should quash the order allowing the
1st respondent to allocate an alternative house to the 2nd
respondent.
The second argument is that since the appellant was a bona
fide purchaser for value without knowledge of any existing
interests and encumbrance on the property, the court below
should have taken those circumstances into account. He,
therefore, urged this court to set aside the judgment and order
the 1st respondent to make good whatsoever loss caused by
offering the 2nd respondent an alternative house to be purchased.
He argued that if fault has to be apportioned, it must be put
entirely on the 1st respondent and not the appellant. According
to him, she never visited the house until after she was offered
that house for purchase and after she had borrowed money to
purchase and renovate the same house. He went on to say that
according to him, the appellant was offered vacant possession
and that even the 2nd respondent did not object to the alternative
house until she saw the house which was being offered as an
alternative when she complained about the state of the house,
that it was dilapidated and needed to be renovated….
The 1st respondent’s counsel, Mr Munansangu, responded

that he supported the judgment of the lower court and that in
fact the 2nd respondent had accrued rights to be offered first
chance to purchase the house in question and that the 1 st
respondent was wrong to have ignored these rights of the 2nd
respondent in offering the appellant and that he had no lawful
explanation of such conduct by the respondent in as far as this
purported sale to the appellant was concerned.
Mr Nchito, the learned counsel for the 2nd respondent,
responded that the lower court was on firm ground. He argued
that the learned trial Judge was very careful and cautious in the
way he arrived at the decision after taking into account all the
circumstances of the case. He argued that an alternative
allocation of a different house to be purchased by the 2nd
respondent, the learned trial Judge was right in making the order
he did in order to avoid prolonging the dispute and the matter
had to end by making that order. On the second argument, he
argued that the appellant was not an innocent victim taking into
account her status in life at the time. She could not be a bona
fide purchaser without notice.
He cited the case of Oliver v. Hinton,27 in which the court
in England held:
He has, whether deliberate or carelessly, abstained

from making those inquiries that a prudent
purchaser would have made.
He went on to say that in the case before us, Lusaka City

Council abused its discretion when it offered Plot 4483, Katima
Mulilo Road, Kalundu, Lusaka, to Honourable Edith Nawakwi
who was Minister at the material time instead of offering it to
the 2nd respondent, who was sitting tenant of the same house,
who had also registered the desire to purchase the same house.
He went on to point to a letter of offer on page 25 of the record
and that one would have expected the appellant to have visited
the house before purchase. He also pointed out to the fact that
the letter refusing to sell the house to the 2nd respondent (on the
12th of November 1992) by the 1st respondent was on the same
day the appellant wrote to the Minister of Local Government
and Housing applying to - be considered to purchase a house,
no other house but particularly this house, Plot No. 4483, Katima
27
[1899] 2 Ch 264.
Mulilo Road, Kalundu. Lusaka. The letter he made reference to
is at page 15 to 16 of the record of appeal. The question, he
submitted, which begs an answer is, how the appellant on the
day the Minister of Local Government and Housing refused to
sell that house, Plot 4483 Katima Mulilo Road, Kalundu, Lusaka
to the 2nd respondent the appellant would write seeking to
purchase the same house. He went on also to point out that it
would not be by some coincidence that this should happen that
the appellant would write to the Minister on the same day as the
same Minister would be rejecting the application by the 2nd
respondent to purchase the same house Plot No. 4483, Katima
Mulilo Road, Kalundu, Lusaka. He mentioned that the letter
from the appellant suggested that there were some discussions
between herself and the Honourable Minister of Local
Government and Housing. According to him, as was held by
this court in the case of Jane Mwenya and Jason Randee v.
Paul Kapinga,28 the possession of a house by tenants should
put any prudent purchaser on inquiry as to the terms of such a
tenant. This court went on to hold that the holding of any
possession by a tenant of the house must be seen as constructive
notice. Therefore, he urged us to hold that the appellant knew
that the house being offered to her was occupied by the 2nd
respondent. He referred to the letters from Messers J.C. Malunga
and Company the then advocates of the appellant in which they
were demanding vacant possession as evidence of the
knowledge by the appellant that the house was not unoccupied.
He referred us to the letters from the appellant demanding for
rentals….
Coming to the argument that the court below should have
given to the 2nd respondent an alternative remedy, we cannot
fault the learned trial Judge. He had a good reason to order as
he did that since the 2nd respondent was the sitting tenant and
had accrued rights to have the first option of purchasing, she
should have been offered that house first before the appellant
and if she failed to meet the conditions set for purchasing the
house in question then the offer would have gone to the appellant.
We have no hesitation whatsoever in stating that the Honourable
Minister of Local Government and Housing abused his discretion
when he offered this house to the appellant. He completely
ignored the rights of the 2nd respondent by offering that house
to the appellant. So we see no merit in the ground that the
procedure used was wrong.
28
(1998) ZR 17.
Coming to the moral argument namely that this court is a

court of both equity and law, the appellant should be treated as
a bona fide purchaser of the house for value without notice, in
this case, there is no way one can treat the appellant as such, as
we agree with Mr Nchito that there is overwhelming evidence
that the appellant in her capacity as Honourable Minister in
Cabinet, had access to records which would have given her the
right information.
Also as we said in the case of Jane Mwenya and Jason
Randee v. Paul Kapinga,29 adopting the English case of Hunt
v. Luck,30 the occupation of the house by the 2nd respondent,
which in our view the appellant knew about, should have put the
appellant on inquiry as a prudent purchaser. She ought to have
made inquiries and to have visited the place before going ahead
with the purchase. She deliberately or carelessly abstained from
making inquiries that a prudent purchaser would have made.
Purchasing of real property cannot be taken as casually as
purchasing household goods.
We, therefore, hold that she knew of the existence of the
2nd respondent as the tenant or if she did not know this court
must take her to have had constructive notice of the existence
of the 2nd respondent as a tenant of the house in question.
Therefore, whatever loss the appellant must have suffered as a
result of the purported purchase of the house she can only get
that from the 1st respondent and that can be assessed by the
Deputy Registrar.
We, therefore, find no merit in the appeal. We dismiss the
appeal with costs but we direct that an application to be made
before the Deputy Registrar by the appellant to assess the
improvements the appellant made to the house in question to be
made good of by the 1st respondent…
(c) Doctrine of Notice – Failure to investigate the nature of

interest held by the person in possession of land
Match Corporation v. Choolwe and Another Supreme Court Appeal

No. 75 of 2002
Court delivered by CHITENGI, JS]
In this appeal we shall refer to the appellant as the plaintiff, the
first respondent as the defendant and the second respondent as
the third party, which is what they were in the court below.
29
(1998) ZR 17.
30
[1902] Ch.D. 428.
The facts of this case can be briefly stated. The relationship
between the plaintiff and the defendant did not start with the
sale agreement, the subject of this appeal. The relationship
between the plaintiff and the defendant started in 1989 when
the plaintiff and the defendant entered into a lease agreement
whereby the defendant leased to the plaintiff the property known
as Plot 105 of Farm 284a Great East Road, Lusaka, a residential
house and hereinafter referred to as the property.
In August 1990 the defendant, who appears to have been
impecunious at that time, advertised the property for sale.
However, on 23rd August 1990 the Defendant wrote a letter to
the Plaintiff saying he had decided to sell the property and that
he was giving the plaintiff the first option before he could offer
the property to the general public for sale. At the time the
defendant urgently needed money to purchase a farmhouse in
Makeni, inject money in his business and pay two months loan
repayment arrears on a loan he had with the bank. The defendant
immediately needed K20,000.00 which he said would be deducted
from the purchase price of the property, if the plaintiff decided
to purchase the property, or he would repay together with the
rent paid to him by the plaintiff in advance, if the plaintiff decided
not to purchase the property.
On the 29th August, 1990 according to a document produced
in the court below, the defendant asked to be paid K1.5 Million.
The K1.5 million was not paid to the defendant by the plaintiff.
Eight days later, on 6th September, 1990, the plaintiff and the
defendant executed an agreement where it was agreed that the
defendant would sell the property to the plaintiff at the
consideration of K2,370,000.00. In this agreement the plaintiff
and the defendant agreed, inter alia, that the consideration,
less the amounts paid to the defendant by the plaintiff as rent in
advance, would be paid to the defendant immediately the property
had been transferred to the plaintiff. In all, the defendant was
advanced K790,000.00 by the plaintiff and, according to the
agreement, the K790,000.00 was to be deducted from the
purchase price.
On 12th September 1990 the defendant wrote to the plaintiff
rescinding the agreement to sell the property, an action which
the plaintiff rejected and which later galvanised the plaintiff into
placing a caveat on the property.
The third party who saw the advertisement which the
defendant had placed in the press in August 1990 responded to
the advertisement and agreed to purchase the property at

K3,000,000.00. According to the third party, before the
transaction could be concluded, he went with the plaintiff to a
lawyer who conducted a search on the property and found that
the property was not encumbered. This was after the third party
and the defendant had gone to see the property. At the property
the third party and the defendant found a security guard. The
third party only peeped into the property through the window.
After the lawyer said that the property was not encumbered the
third party and the defendant then executed the Law Association
of Zambia contract of sale and the third party paid the Defendant
the purchase price of K3,000,000.
On the understanding that he would purchase the property
the plaintiff made improvements to the property.
At the end of December, 1990 problem started. The lease
between the plaintiff and the defendant in respect of the property
expired and the third party went to the Lands and Deeds Registry
to register the property in his name, only to discover that the
plaintiff had placed a caveat on the property.
The third party joined these proceedings to get vacant
possession of the property which he subsequently got and is
now in possession.
On these facts the plaintiff brought an action in the High
Court seeking specific performance of the contract referred to
above and damages for breach of the same contract.
The High Court dismissed the plaintiff’s action holding that
there was no binding contract between the plaintiff and the
defendant because there was no consideration and formality
required for a land transaction. According to the learned trial
Judge, the relationship between the plaintiff and the defendant
only amounted to an intention to create a legal relationship.
The plaintiff now appeals to this court against the judgment
of the High Court.
When we heard the appeal only the plaintiff and the third
party were present. The defendant, for unexplained reasons did
not attend or file written heads of argument. We therefore,
proceeded to hear the appeal in his absence…..The third ground
of appeal was that the learned trial Judge misdirected himself
by holding that the third party had acquired good title to the
house in issue….On ground three, Mr Shonga submitted that
the contract between the plaintiff and the defendant preceded
the contract between the defendant and the third party.
Therefore, the third party could not acquire good title to the
property. It was Mr Shonga’s submission that the third party
had both constructive and actual notice of the plaintiff’s interest
in the property.
Mr Shonga observed that the third party said the plaintiff’s
lease would expire in December 1990 indicating that the third
party knew that the plaintiff was still in occupation. Despite this,
Mr Shonga pointed out, the third party did not care to investigate
the interests of the plaintiff in the property. Mr Shonga then
referred us to a number of cases where we have said that a
tenant’s occupation of land is notice of all the tenant’s rights and
that it is incumbent upon the purchaser to find out from the
tenant what his rights are and that if the purchaser does not
investigate then whatever title he acquires will be subject to the
title or rights of the tenant in possession. We only cite the case
of Mwenya and Randee v. Kapinga.31
In conclusion on this ground, Mr Shonga submitted that
because the third party failed to investigate the plaintiff’s rights,
any title the third party acquired was subject to the rights of the
plaintiff.. . We have considered the evidence that was before
the learned trial Judge, the submissions of counsel and the
authorities they have cited to us and we have looked at the
judgment of the learned trial Judge... The learned trial Judge
refused to order specific performance on the ground that the
third party obtained good title. Mr Shonga vehemently attacked
this holding in his eloquent and well researched submissions. Mr
Shonga referred us to the cases we have recited above and
argued that whatever title the third party obtained was subject
to the rights of the plaintiff. Mr Ndhlovu’s reply to all this was
that the contract between the defendant and the third party was
valid and, therefore, as the learned trial Judge held, the third
party obtained good title.
We have considered these submissions. On the facts of this
case and the authorities cited to us we have no hesitation
whatever to accept Mr Shonga’s submissions that whatever
title the third party obtained is subject to the rights of the plaintiff.
The evidence demonstrates to us that from the time the third
party became interested in purchasing the property he was aware
of the presence of the plaintiff in the property.
The third party went to the property and found it locked and
being guarded. The third party also talked about the lease
31
(1998) ZR 17.
between the plaintiff and the defendant which was to expire

end of December 1990. Clearly the third party knew about the
presence of the plaintiff in the property and he should have
therefore investigated to find out what interests, if any, the plaintiff
had in the property. If the third party did care to investigate he
would have found that the plaintiff had equitable interest in the
property under the agreement of sale between the plaintiff and
the defendant.
In the circumstances we must fault the learned trial Judge’s
holding that the third party had obtained good title to the property,
without saying more. In the result, ground three of appeal
succeeds...
The doctrine of notice also arose in the case of Tembo v.

Alizwani.32 The case is excerpted under Chapter 19 dealing
with the Housing (Statutory and Improvement) Areas Act. The
case of Magic Carpet Travel and Tours Limited v. Zambia
National Commercial Bank Limited,33 excerpted under section
17.14 of Chapter seventeen also to some extent covered the
doctrine of notice.
8.6 Summary of Chapter Eight
In theory, all proprietary rights in land (estates and interests)

may be either legal or equitable. The distinction between legal
and equitable rights is fundamental to land law. The consequences
of the legal/equitable distinction is the different way in which
legal and equitable rights can affect new owners of land over
which such rights exist. If the right is legal it would bind every
transferee of the land over which it exists. In other words ‘legal
rights bind the whole world’ and the persons entitled to enforce
it could exercise it against any new owner or occupier of land
as was held in Chona v. Evergreen Farms Limited. A person
entitled to a legal right of an easement would be able to enjoy
that right no matter who came to own or occupy the land over
which it exists. An equitable right binds every transferee of land
except equity’s darling, i.e., a bona fide purchaser for value of
a legal estate in the land who had no notice of the equitable
right. Most of the requirements under the bona fide purchase
32
Supreme Court Judgment No. 6 of 1996.
33
(1999) ZR 61.
rule can usually be satisfied and the only real question usually
relates to notice, whether the purchaser had notice of the
equitable right. This has been illustrated by the cases that have
been excerpted under this chapter. The cases also show that
purchasing of real property, in the words of Justice Chibesakunda
in the Nawakwi case, ‘cannot be taken as casually as purchasing
household goods.’ The object of investigating title to land is to
discover whether land is subject to rights vested in persons other
than the vendor. If the purchaser fails to make inquiries of third
persons who happen to be in possession of the land, he is affected
with notice of all equitable interests held by them. This again
has been illustrated by the cases excerpted in this chapter.
Chapter Nine
TRANSMISSION OF TITLE TO LAND: The

Statute of Frauds 1677 and the Equitable Doctrine
of Part Performance
9.0 Introduction
At common law the general rule of English law is that contracts

can be made quite informally: no writing or other form is
necessary1 . The Statute of Frauds, which was passed in 1677,
requires under section 4, that contracts for sale of land or
disposition of an interest in land must in order to be enforceable,
be supported by written evidence. The object of the Statute is
to prevent fraudulent claims based on false evidence but in
practice it worked badly as it enabled contracting parties to rely
on what were considered to be technical defences.2
9.1 Statute of Frauds, 1677
The preamble to the Statute of Frauds explained its objects:

‘for the prevention of many fraudulent practices, which are
commonly endeavoured to be upheld by perjury or
subornation of perjury’. The ‘mischief’ for which the statute
was providing a remedy was, therefore, that some transactions
were being conducted orally in such a way that important
interests were liable to be adversely affected by a mode of
operation that invited forensic mendacity, the remedy was to
require some greater formality in the record of such transactions
than mere word of mouth if it was to be enforced.3
Before the enactment of the Statute of Frauds 1677, there
was no requirement that a contract for the sale or any disposition
of land or any interest in land had to be evidenced in writing.
The existing status quo then led to fraudulent practices which
were commonly endeavoured to be upheld by perjury or
subornation of perjury. The Statute of Frauds, 1677, introduced
1
Chitty on Contracts: General Principles, Vol. 1. London: Sweet and Maxwell (1999), Para. 4-001, at p. 261.
2
Ibid.
3
Per Lord Simon of Glaisdale in Steadman v. Steadman [1974] 2 All ER 977, at pp. 995 - 996.
requirements for contracts for sale of land or disposition of any

interest in land to be evidenced in writing failing to which they
would be unenforceable.
Section 4 of the Statute of Frauds 1677, as amended by the
(English) Law Reform (Enforcement of Contracts) Act, 1954
provides that:
no action shall be brought upon any contract for

the sale or other disposition of land or an interest
in land, unless the agreement upon which such
action shall be brought, or some memorandum
or note thereof, shall be in writing and signed by
the party to be charged therewith or some other
person there unto by him lawfully authorised.4
The constituent parts of section 4 are briefly discussed below.
1. No action may be brought
The Statute of Frauds does not avoid parol contracts, but only
bars the legal remedies by which they might otherwise have
been enforced.5 The effect of section 4 is that though a contract
may be valid, it may not be enforceable by an action at law.
2. The sale or other disposition of land or any interest in land
The words ‘any interest in land’ are comprehensive and cover

leases, mortgages as well as sales.6
3. Some memorandum or note thereof, is in writing
The agreement itself need not be in writing. A ‘note or

memorandum’ of it is sufficient, provided that it contains all the
material terms of the contract. Such facts as the names or
adequate identification of the parties, the description of the subject,
the nature of the consideration, comprise what may be called
the minimum requirements.7
4
The original section 4 of the Statute of Frauds was amended by the Law Reform (Enforcement of Contracts) Act
1954. The Act applies to Zambia by Virtue of Chapter 10 of the Laws of Zambia.
5
Madison v. Alderson [1883] 8 App. case 467 at 474, per Lord Selbourne.
6
7
Cheshire Fifoot and Furmston’s Law of Contract (11th ed.). Oxford: Butterworths (1986), p. 201.
TRANSMISSION OF TITLE TO LAND: THE STATUTE OF FRAUDS 1677
AND THE EQUITABLE DOCTRINE OF PART PERFORMANCE 267
On the content of a ‘note’ or ‘memorandum’, the Supreme
Court in the case of Mijoni v. Zambia Publishing Company
Limited,8 observed thus:
It seems to us that it is now settled that for a

note or memorandum to satisfy section 4 of the
Statute of Frauds, the agreement itself need not
be in writing. A note or memorandum of it is
sufficient provided that it contains all the material
terms of the contract such as names or adequate
identification of the parties, the description of the
subject matter and the nature of the
consideration… . It has also been said that letters
may themselves constitute the contract and the
written evidence of it. It follows that whether
there is a binding contract or not it must depend
on the construction of the letters.
The memorandum need not be in any special form, nor is it

necessary that it should have been intended to act as a
memorandum.9
The question is not one of intention of the party

who signs the document, but simply one of
evidence against him10
In Zambia Building and Civil Engineering and Contractors

Limited v. Georgopoullos,11 in an action which arose out of a
dispute over a building contract in which the plaintiff claimed
specific performance of the sale to it of the property by the
defendant, it was held, inter alia, by the High Court (Hughes,
J) that it is well settled that the memorandum required by the
Statute of Frauds need not be in a particular form, and may be
constituted by two or more documents which are clearly
connected by reasonable inference. In the course of delivering
the Judgment his Lordship observed and commented thus:
The next issue for consideration is mainly one of

law and relates to the plaintiff’s claim for specific
performance of the agreement for sale of the
8
Appeal No. 10 of 1986.
9
10
Re Hoyle [1893] 1 CH 84 at 99 per Bowen, L.J.
11
(1972) ZR 228.
property at Wavell Street. In resisting this claim

the defendant firstly asserts that the document
at page 1 of the bundle of documents is not a
sufficient memorandum as required by section 4
of the Statute of Frauds. To meet the requirement
of the Statute the memorandum must adequately
establish, (i) the parties, (ii) the subject matter of
the agreement, (iii) the price, and (iv) any other
essential term or condition of the bargain. It is
unarguable that the memorandum in this case
sufficiently meets the requirements of (i), (ii),
and (iii). The defendant submits that because
there was also an agreement between the parties
to effect a building on the plot, an essential term
of the bargain between them was omitted, thus
rendering the memorandum insufficient and the
agreement unenforceable. There is no direct
evidence on the point, but as a matter of inference
and on the balance of probabilities, I would find
that the parties intended the two transactions to
be separate agreements. If it be the case that
this inference is not justified on the evidence and
that the contract to build should be regarded as
an essential term of the agreement in question, I
would nevertheless find that the Statute of Frauds
does not avail the defendant. It is well settled
that the memorandum required by the Statute
need not be in any particular form, and may be
constituted by two or more documents which are
clearly connected by reasonable inference (see
Halsbury Statutes, Second Edition, Volume 20,
page 503). If the contract to build is regarded as
an essential term of the agreement between the
parties, then, in my view, the documents at pages
2 and 3 of the agreed bundle constitute a
sufficient memorandum in writing thereof clearly
connected with the document at page 1 of the
said bundle.
In Krige and Another v. Christian Council of Zambia,12 it

was held, inter alia, that the engrossment of the lease for
12
(1975) ZR 152.
execution and the accompanying letter constituted a valid
memorandum in writing of an agreement for a lease which should
have been registered under the Lands and Deeds Ordinance
(now Act) and further that the effect of non registration was
that the agreement was void for all purposes whatsoever.
4. Signed by the party to be charged or by some other person

thereunto by him lawfully authorised
Only the person whom it is sought to hold liable on the agreement

or his agent, need sign the memorandum. What the section
requires is a signature by or on behalf of the party against whom
it is sought to enforce the contract. The word ‘signed’ means
more than signing in the ordinary sense of the word. What is
required is that the name of the party to be charged appears in
some part of the document in some form, whether in writing,
typewriting, print or otherwise.13
In Mobil (Zambia) limited v. Loto Petroleum Distributors
limited,14 the High Court (Hadden, J) held, inter alia, that the
plaintiff by inserting its name twice in the final draft had
sufficiently signed the agreement within the meaning of section
4 of the Statute of Frauds and the agreement was enforceable.
9.2 Intervention of Equity – The Equitable Doctrine of Part

Performance
In England the Doctrine of Part-performance which had become

part of the Statute law was abolished in 1989 by the Law of
Property (Miscellaneous Provisions) Act of 1989.15
It has been noted from the above that the object behind the
enactment of the Statute of Frauds 1677, was for the prevention
of many fraudulent practices. Notwithstanding section 4 of the
Statute, the possibility of abuse remained. The Statute which
was enacted to prevent fraud became an engine of fraud itself.
Lord Simon of Glaisdale in Steadman v. Steadman16, succinctly
explained the abuse of fraud which came about as a result of
enactment of the Statute. His Lordship also explained the reasons
for equity’s intervention as well as the nature of the doctrine of
part performance. His lordship observed and commented thus:
13
14
(1977) ZR 336. The case excerpted below under the section dealing with case law. See also Leeman v. Stocks
[1951] CH 941.
15
See Megarry and Wade, The Law of Real Property (6th ed.). London: Sweet and Maxwell (2000), p. 650-652.
16
[1974] 2 All ER 977.
The preamble to the Statute of Frauds explained

its object: ‘For prevention of many fraudulent
Practices, which are commonly endeavoured to
be upheld by Perjury or Subornation of Perjury
…’ The ‘mischief’ for which the statute was
providing a remedy was, therefore, that some
transactions were being conducted orally in such
a way that important interests were liable to be
adversely affected by a mode of operation that
invited forensic mendacity. The remedy was to
require some greater formality in the record of
such transaction than mere word of mouth if it
was to be enforced.
The second, competing, legal principle was
evoked when, almost from the moment of passing
of the Statute of Frauds, it was appreciated that
it was being used for a variant of unconscionable
dealing, which the statute itself was designed to
remedy. A party to an oral contract for the
disposition of an interest in land could, despite
performance of the reciprocal terms by the other
party, by virtue of the statute disclaim liability
for his own performance on the ground that the
contract had not been in writing. Common law
was helpless. But equity, with its purpose of
vindicating good faith and with its remedies of
injunction and specific performance, could deal
with the situation. The Statute of Frauds did not
make such contracts void but merely
unenforceable; and, if the statute was to be relied
on as a defence, it had to be specifically pleaded.
Where, therefore, a party to a contract
unenforceable under the Statute of Frauds stood
by while the other party acted to his detriment in
performance of his own contractual obligations,
the first party would be precluded by the Court
of Chancery from claiming exoneration, on the
ground that the contract was unenforceable, from
performance of his reciprocal obligations; and
the court would, if required, decree specific
performance of the contract. Equity would not,
as it was put, allow the Statute of Frauds ‘to be
used as an engine of fraud’. This became
known as the doctrine of part performance—
the ‘part’ performance being that of the party
who had, to the knowledge of the other party,
acted to his detriment in carrying out
irremediably his own obligations (or some
significant part of them) under the otherwise
unenforceable contract. This competing
principle has also received statutory
recognition, as regards contracts affecting
interests in land, in s 40 (2) of the Law of
Property Act 1925.
But what was in origin a rule of substantive
law designed to vindicate conscientious dealing
seems to have come in time sometimes to have
been considered somewhat as a rule of
evidence. It is easy to appreciate how this
happened. Part performance could be viewed
as a way of proving an agreement falling within
section 4 notwithstanding the absence of
writing. Seen as such it was no doubt
considered necessary to frame stringent
requirements to prevent the doctrine from
carting a sedan chair through the provision
of the statute. If part performance was to be
evidence of a contract which could not
otherwise and directly be proved, the acts of
part performance should themselves
intrinsically be capable of proving some such
contract as that alleged. Oral evidence was
not admissible to connect them with the alleged
contract: otherwise, it was held, the statutory
object would be defeated by allowing an
interest in land to pass on mere oral testimony.
As the Earl of Selborne LC put it in Maddison
v. Alderson ((1883) 8 App Cas 467 at 478,
479) (in a passage I label ‘(A)’ for ease of
reference later):
(A) “The doctrine … has been

confined … within limits intended to
prevent a recurrence of the mischief
which the statute was passed to

suppress … All the authorities shew
that the acts relied upon as part
performance must be unequivocally, and
in their own nature, referable to some
agreement as that alleged.17
9.3 Acts of Part Performance
In order to be sufficient, the act of part performance has to

‘constitute an indication that a contract existed; and further
more the act had to be related in some way to the land which
had been the subject of the oral agreement.18’ Before the
decision in Steadman v. Steadman, mere payment of money
was not accepted as a sufficient act of part performance.
The following have been held to be sufficient acts of part
performance:
(a) where vendor at purchaser’s request gave notice to two
of his tenants to quit;19
(b) where vendor allowed his workmen to make alterations
to his premises under the supervision of purchaser;20
(c) where purchaser took possession with vendor’s
consent;21
(d) where purchaser undertakes alterations to the property
before the date of commencement;22
(e) where purchaser was allowed into possession before
the contract and remained in possession;23 and
(f) where purchaser paid money to vendor and sent vendor
a draft deed of transfer under an oral agreement notified
to, and confirmed by vendor before the magistrates in
the proceedings to which the vendor and purchaser were
parties.24
The following have been held to be insufficient acts of part
performance:
(a) viewing of land by the purchaser;25
(b) purchaser acts as a house keeper for vendor;26 and
17
[1974] 2 All ER 977 at pp. 995-996.
18
Riddal, J.G., Introduction to Land Law. London: Butterworths (4th ed.) (1988), p. 241.
19
Daniels v. Trefusis [1914] 1 Ch 788.
20
Rawlinson v. Ames [1925] Ch 96.
21
Kingswood Estate Co. Ltd v. Anderson [1962] 3 All ER 593.
22
Broughton v. Snook [1938] 1 All ER 411.
23
Hodson v. Heuland [1896] 2 Ch 428.
24
Steadman v. Steadman [1974] 2 All ER 977.
25
Clerks v. Wright [1737] 1 All ER 12 at 13.
26
Maddison v. Alderson [1883] 8 App. Case 467.
(c) purchaser with assistance of vendor applies for planning

permission to build on the land.27
The conditions that are required for the doctrine of part
performance to be invoked were discussed by Lord Simon of
Glaisdale in Steadman v. Steadman. The judgment of Lord
Simon is excerpted below under the section dealing with case
law. The case of Jean Mwamba Mpashi v. Avondale Housing
Project Limited,28 which is also excerpted below, dealt with
one of the conditions that needs to be satisfied, namely that the
act of part performance must be ‘unequivocally referable to the
contract.’ The case also dealt with the principle established in
Steadman v. Steadman that the mere payment of money or
deposit could qualify as a sufficient act of part performance.
The case of Konidaris v. Dandiker,29 also excerpted under
the section dealing with case law, shows that since the doctrine
of part performance is an equitable one, it is subject to equitable
principles.
The effect of a sufficient act of part performance is to enable
evidence of all the terms of the contract, including terms of
which the acts of part performance have no relation.30
Lawrence, J, explained the effect of part performance to be
thus:
the effect of the removal of the barrier set up by

the statute is to open the door to parol evidence
of the whole agreement.
9.4 Case Law
(a) For a note or memorandum to satisfy section 4 of the

Statute of Frauds, the agreement itself need not be in
writing. A note or memorandum of it is sufficient provided
that it contains all the material terms of the contract such
as names or adequate identification of the parties, the
description of the subject matter and the nature of the
consideration. Specific Performance of Contract of Sale.
27
New Hart Builders v. Brindley [1975] 1 All ER 1007.
28
Supreme Court Judgment No. 12 of 1992 [unreported].
29
Appeal No. 157 of 1999 (unreported).
30
Sutherland v. Briggs [1841] 1 Hare 26 at p. 32.
MWENYA AND ANOTHER v. KAPINGA (1998) ZR 17
[The facts of the case are summarised under section 8.5 dealing
with case law in the preceding chapter]
BWEUPE, DCJ: This is an appeal by the appellant against the judgment of

the High Court granting the respondents specific performance
of a contract for the sale of Plot No. 4109 Sunningdale, Lusaka
to the respondent by the 1st appellant.
The 1st appellant, Miss Jane Mwenya by a letter dated 25th

August 1992, offered to sell to the respondent plot No. 4109 for
the sale price of K12,000,000. As a precondition to the sale the
1st appellant requested the respondent to pay K800,000 to assist
her in redeeming the mortgage under which the house was at
the time. The 1st appellant received K800,000 and redeemed
the mortgage. When the respondent sent the balance of the
purchase price, the 1st appellant refused to accept the money
because the respondent allegedly had taken too long to find the
money.
The respondent has lived in that house for six (6) years as a
tenant since 7th January 1987, and had paid the K12,000,000
into court ready to be collected by the appellant.
On 22nd September 1993, a third party was added to the
proceedings, Mr Jason Randee, now a second appellant, a person
to whom the 1st appellant has allegedly sold the house. The 2nd
appellant is claiming that there is a valid contract of sale between
him and the 1st appellant in that in October 1992, the 1st appellant
sold the house to him for K13,000,000. He paid K9,000,000 as
deposit and remained with K4,000,000 unpaid.
The court was asked to resolve the following issues:
(a) whether the contract of sale made by the 1st
appellant and the respondent was ever brought to
an end by rescision or other method;
(b) whether the contract of sale made by the 1st
appellant and 2nd appellant (intervenor) was valid;
(c) whether intervenor was an innocent bona fide
purchaser for value without notice and whether he
acquired good title to the house;
(d) which one of the two men, respondent and
intervenor, should be recognised as a legal purchaser
of the house.
In its judgment the court said:
The court has not been shown a copy or the

original of the contract signed by the plaintiff and
defendant. The court does not know what the
terms and conditions of the agreement were. As
a result of this omission, the court shall infer that
the agreement was unconditional and that time
of completion of the sale was not of the
essence....
The learned judge summarised the evidence. He said according

to the evidence of the respondent , the contract was made on
25th August 1992, when the respondent responded to the
advertisement for sale of the house made by the 1st appellant.
On 26th August 1992, the respondent paid K800,000 to the 1st
appellant. The respondent then started to source for funds to
buy the house. During September, 1992 the 1st appellant tried
to get the purchase price from the respondent but she failed.
On 12th October 1992, the 1st appellant decided to sell the house
to the 2nd appellant and signed a contract for sale with Mr
Randee, the 2nd appellant. The court went on:
The following account clearly shows that Miss

Mwenya was too much in a hurry and did not
give the plaintiff sufficient time to look for the
purchase price. She only gave him the month of
September, 1992. I do not think that delay of 30
days to find K12 million can be said to be
inordinate or unreasonable. A delay of four to
six months would have been undoubtedly too long
for any vendor to continue waiting for the
purchase price. The one month or one and half
months delay by the plaintiff to find K12 million
could not be said to be too long to justify a
rescission of a contract. Since time of completion
of the sale was not a term of the contract, the
plaintiff was not guilty of breach of any term by
the short delay in finding the purchase price.... I
rule that the contract of sale between plaintiff

was still subsisting when the 1st appellant
purported to rescind it, and it still subsists now.
The purported sale of the house to Mr Randee
was a breach of contract on the part of the
defendant.
The appellants abandoned grounds 1 and 7. They argued grounds

2-6. The learned advocates for the appellants, Miss Sharp
contended in ground 2 that the learned trial judge erred in law
by holding that a valid contract was in existence when there
was no evidence produced before it to prove such contract.
What was in existence was preliminary agreement which was
not enforceable in the absence of a formal contract of sale.
She argued that the correspondence between the 1st appellant
and the respondent amounted to a preliminary negotiation which
was included to culminate into a concluded contract but from
which either party could retire before the formal contract
concluded. She then referred the court to Halsbury’s Law of
England 3rd Edition Vol. 34 page 192.
In ground 3 Miss Sharp submitted that the court below erred
in law by granting the remedy of specific performance to the
respondent when there was a more appropriate remedy of
damages since there was a bona fide purchaser for value without
notice: refer Pacific Mother Auctions Private Limited v.
Motor Credit (Hire Finance) Limited.31
She argued ground 5 that in the alternative, if this court finds
that the 1st appellant’s letter of 25th August 1992 amounted to a
valid contract, then the Judge erred both in law and in fact by
not finding that the contract was terminated by the respondent’s
own breach: See Encyclopedia of Forms and Precendents
4th Edition Vol 17 page 749, Sutton and Shannon on
Contracts Butterworths 7th Edition page 325.
In ground 6, Miss Sharp submitted that the court below erred
in law by applying the Sales of Goods Act, 1893 to transaction
involving sale of Land.
The respondent’s advocate Mr Musaba of Mungomba and
Associates responded to five grounds of the appellants grounds
of appeal. He said the appellants’ ground of appeal is
misconceived in that there is sufficient evidence of a concluded
contract between the 1st applicant and the respondent which
contract neither left anything to future treaty nor specifically
stated that the parties would treat the said contract merely as a
31
[1965] 2 All ER 105.
preliminary agreement and/or subject to a further or formal
contract to be drawn. Mr Musaba argued that the sufficient
note or Memorandum as desired by the Statute of Frauds 1677
being the 1st appellant’s letter of offer to the respondent dated
25th August 1992, did not indicate that the sale transaction would
subject to a formal contract to be drawn up nor is such an
inference capable of being drawn from the said letter. In any
case the preliminary negotiations were held by the parties prior
to the letter of offer. He referred to page 25 of the record of
appeal and Fry on Specific performance 8th Edition page
25 paragraphs 506 - 508.
He argued ground 3 that notwithstanding the fact that
completion was to be within thirty days from the date of contract,
the court did not fall into error in law when it held that the contract
between the 1st appellant and the respondent was unconditional
in respect of time of completion in that there was nothing in the
said letter indicating that time was of the essence of the contract.
He said the holding of the judge in this respect ought not to be
misconstrued as having implied that the contract between the
parties was unattended by conditions in its entirety, but that even
though the parties agreed that completion would be within thirty
days, nevertheless they did not agree nor intend that time be of
the essence of the contract. See Cheshire and Fifoot’s Law
of Contract 10th Edition 499 paragraphs 1 - 3 where the
learned authors say:
By way of summary, it may be said that time is

essential firstly if the parties expressly stipulate
in the contract that it shall be so; secondly, if in a
case where one party has been guilty of undue
delay, he is notified by the other that unless
performance is completed within a reasonable
time the contract will be regarded as at end; and
lastly if the nature of the surrounding
circumstances or of the subject matter makes it
imperative that the agreed date should be
precisely observed.
Mr Musaba argued that nothing at page 25 indicates that time

was of the essence. He said a contract can only be repudiated
if a notice is given within the stipulated period. He referred the
court to Dennis Lyuwa v. Cold Storage of Zambia 32 and
concluded that in the absence of Completion Statement by the
32
vendor to the purchaser time was not of the essence of the

contract.
In ground 4 Mr Musaba submitted that the learned judge
was in order to have decreed the remedy of specific performance
in favour of the respondent instead of damages and that the
second appellant was not a bona fide purchaser for value without
notice. He argued that an order for damages would not have
been sufficient to redress the respondent’s plight and therefore
the judge properly exercised his discretion in pronouncing an
Order for specific performance in the respondent’s favour as
being the more appropriate remedy. He referred the court to
the case Hutton v. Walting33 where Jenkins, J said:
The normal common law remedy for breach of

a contract, namely damages is not in all cases
an adequate remedy.
He also referred to the case of Tito v. Waddell (No. 2)34 where

it was stated:

an “adequate” remedy but whether specific
subject matter such as land.
Mr Musaba argued that the decree upon being pronounced was

practically enforceable and has in fact since been complied with
as in fact, the respondent prior to and during the proceedings,
was a tenant of the 1st appellant, and already in possession of
the property the subject of the present appeal. A certificate of
title has since been issued in the respondent’s name and his
family continues to live on the property…
Mr Musaba responded in ground 5 that the judge did not fall
into error in fact or in law by not finding that the said contract
was terminated by the respondent’s own breach in that acts or
omissions were done or the part of the respondent as to amount
to a breach of the contract of sale. To the contrary the 1st
appellant failed and/or neglected to perform part of the contract
33
[1947] 2 All ER 641 at 641.
34
[1977] Ch. D 106, at p. 322.
as agreed on by the parties, in the contract being the 1st
appellant’s letter of 25th August 1992, thus:
(a) the respondent paying to the first appellant as part of
the purchase price an initial amount of K800,000.00;
(b) that the 1st appellant using the said sum to redeem
mortgage she had on the property under sale;
(c) after redemption, the 1st appellant then transferring title
of the property to the respondent
However, the 1st appellant failed and/or neglected to transfer
title of the property to the respondent before she could receive
the balance of the purchase price and as contracted between
the parties. He referred the court to the case of Killner v.
France35 where Stable, J, said:
‘completion’ in the contract had its usual meaning

i.e. the complete conveyance of the estate and
final settlement of the business.
He argued that in the instant case, the 1st appellant was firstly
supposed to transfer title of the property to the respondent: the
complete conveyance of the estate, before the respondent could
pay her the balance of the purchase price: the final settlement
of the business.
As regard ground 6, Mr Musaba submitted that though it
was conceded that the sale of Goods Act 1893 does not apply to
contracts involving disposition of an interest in land nevertheless
reference and/or reliance on the said legislation by the judge is
not sufficient as to warrant this court allowing this appeal for
the following reasons:
(a) that the provisions of sections 10 and 22 of the Sale of
Goods Act 1893 on stipulations as to time and a bona
fide purchaser for value without notice are not at
variance with the general law of contract;
(b) that an award of damages to the respondents would
not have been adequate to redress his plight as he had
acquired a very special and/or very unique interest in
the property having lived in it for at least eight (8) years
as at the date of judgment and thus the decree of
Specific Performance was the more appropriate
remedy. He then urged the court to dismiss the appeal
with costs.
35
[1946] 2 All ER p. 83.
We have anxiously considered the oral evidence on record and

the submissions by both learned counsel. We have also examined
the judgment of the learned trial Judge, the documents and
authorities cited. The issue for determination, as we see it,
however, is whether the letter written by the 1st appellant to the
respondent on 25th August 1992, constitute an offer.
The letter reads as follows:
Mr. P. Kapinga
LUSAKA
Dear Sir,
re: SALE OF PLOT NO. 4109 - SUNNINGDALE
As per our discussion, I now offer you this Plot at K12

Million. The first payment of K800,000.00 has to be paid
immediately. On completion of this transaction, I will
transfer the title deeds and you will pay me the balance,
and this will be within 30 days from the date hereof.
Kindly let me know if this offer is accepted.

Yours faithfully,
Signed
JANE MWENYA
The above letter was written on 25 August 1992 and on 26

August 1992, the respondent accepted the offer and paid
K800,000 deposit as demanded in the letter of offer and which
deposit the 1st appellant used to redeem the mortgage on the
property.
Miss Sharp on behalf of the appellant argued that the learned
trial judge was in error when he held that a valid contract was in
existence when there was no evidence produced before it to
prove such contract. She said what was in existence was a
preliminary agreement which was not enforceable in the absence
of a formal contract of sale. She further argued that the
correspondence between the 1st appellant and the respondent
amounted to a preliminary negotiation which was intended to
culminate into a concluded contract of sale.
36
Appeal No. 10/1986.
In the case of Mijoni v. Zambia Publishing Company
Limited36 this court had this to say:
It seems to us that it is now settled that for a

note or memorandum to satisfy Section 4 of the
Statute of Frauds, the agreement itself need not
be in writing. A note or memorandum of it is
sufficient provided that it contains all the material
terms of the contract such as names or adequate
identification of the parties, the description of the
subject matter and the nature of the consideration
(See Cheshire and Fifoot’s Law of Contract 9th
Edition at p.186 under the heading: The contents
of the note or memorandum). It has also been
said that letters may themselves constitute the
contract and the written evidence of it. It follows
that whether there is a binding contract or not it
must depend on the construction of the letters.
The letter dated 25th August 1992, by the 1st appellant addressed
to the respondent is not in dispute. It has identified the parties,
the subject matter of the agreement and the consideration of
K12 million. The offer was made by Miss Jane Mwenya to Mr
P. Kapinga as per their discussions to purchase Plot 4109,
Sunningdale, Lusaka at K12 million. The first payment of
K800,000.00 had to be paid immediately. The name of the vendor
and the name of the purchaser, the subject matter plot 4109 and
the consideration of K12 million were all featured in that letter
of 25th August 1992. The accepatance of the offer was clearly
made by payment of K800,000.00 deposit which the vendor
used to clear the mortgage. There was therefore nothing left to
be included in the future.
In the case of Mundada v. Mulwani and Others 37, we
said:
We will deal first with the question of the learned

judge’s discretion to make an order for specific
performance. In this respect we are quite
satisfied that the majority of the authorities cited
to us related to specific performance of contracts
other than the contracts for the sale of land. The
law concerning specific performance of contracts
37
(1987) ZR 23.
relating to the sale of land is quite clearly set out

in paragraph 1764 of contracts 25th Edition
which reads in part:
The law takes the view that damages

cannot adequately compensate a party for
breach of contract for the sale of an
interest in a particular piece of land or of a
particular house (however ordinary)....
This authority is supported in countless
other cases and this case it is quite clear
that the learned trial judge did not have his
attention drawn to the fact that his
discretion in relation to specific
performance for the sale of land was
decidedly limited.
In this case the preliminary negotiations were had by the parties

as indicated by the letter. We agree with the learned author in
Fry on Specific Performance 6th Edition at page 244
paragraph 506 - 508 that when the contract is not expressly
stated to be subject to formal contract it becomes a question of
construction, whether the parties intended that the term agreed
on should merely be put into term or whether they should be
subject to a new agreement the terms of which are not expressed
in details.
In Lloyd v. Nowell,38 a writing purporting to be an agreement
for a lease but expressed to be “made subject to the preparations
and approval of a formal contract” was held not to be a concluded
contract and the vendor could not waive such a stipulation. In
the matter before us the parties intended that the terms agreed
on should merely be put into form.
In relation to delay Cheshire and Fifoot’s Law of Contract
10th Edition on page 499 pages 1, 2 and 3 thereof puts the
matter thus:
By way of summary, it may be said that time is

essential firstly, if the parties expressly stipulate
in the contract that it shall be so; Secondly, if in a
case where one party has been guilty of undue
delay, he is notified by the other that unless
38
(1895) 2 Ch. DP 744.
performance is completed within a reasonable
time the contract will be regarded as at end; and
lastly, if the nature of the surrounding
circumstances or of the subject makes it
imperative that the agreed date should be
precisely observed.
We are satisfied, therefore, that upon a proper construction of

the 1st appellant’s letter dated 25th August 1992, as at page 25
of the record a sufficient note or memorandum existed of which
time was not of the essence. That there was no unreasonable
delay and that no completion statement was issued. We would
also hold as did the trial judge that there was no basis for
rescission.
We now turn to ground four. It was submitted that the trial
judge erred in law by granting the remedy of specific performance
to the respondent when there was a more appropriate remedy
of damages since there was a bonafide purchaser for value
without notice. The respondent’s counsel argued that the learned
trial judge was in order to have decreed the remedy of specific
performance in favour of the respondent instead of damages
and that the 2nd appellant was not a bonafide purchaser for
value without notice. He said damages would not have been
sufficient to redress the respondent’s plight. He referred to the
case of Tito Waddell (No. 2 1997) Ch. D.P. 106 at p. 322 where
it reads:

an ‘adequate remedy but whether specific
subject matter such as land...
The Supreme Court went on to hold that the 2nd appellant had
constructive notice when he purchased the property and that
his purchase was subject to the respondent’s title or rights.39
The Court finally confirmed the learned trial Judge’s decision
ordering the specific performance of the Contract of Sale.
39
This aspect of notice is covered under chapter 8 where this case is also excerpted in relation to the doctrine
of Notice.
40
Appeal No. 75 of 2002- The case is excerpted under chapter eight in relation to the doctrine of notice.
In Match Corporation Limited v. Choolwe and Another,40

Chitengi, JS, in the course of delivering the judgment of the
Supreme Court observed and commented thus:
In this case, as we have already said above, the

relationship between the Plaintiff and the
defendant over the property did not start with
the execution of the sale agreement under inquiry.
There existed, between the Plaintiff and the
defendant, a relationship of landlord and tenant.
And, so far as we have been able to ascertain
from the facts, it is clear to us that the payment
of rentals in advance and the agreement between
the Plaintiff and the defendant to sell the property
to the Plaintiff, were substantially one and the
same transaction. It could not be otherwise. The
Plaintiff advanced the defendant money while
he was in the defendant’s property. When the
defendant wanted to sell the property, the Plaintiff
expressed interest in the property and said the
advances he gave to the defendant be treated
as part of the purchase price. Clearly, these
transactions cannot, in relation to the sale and
purchase of the property, be treated separately.
Indeed, even the Plaintiff and the defendant
themselves say in the agreement they executed
that the rentals paid in advance would be part of
the purchase price. The arguments and
submissions by Mr Ndhlovu that the
consideration was past consideration are,
therefore, untenable. We accept Mr Shonga’s
submissions that there was valuable
consideration, but not for the reasons he gave,
but for the reasons we have given. Having found
that the payment of rental advances and the
execution of the sale agreement were
substantially one and the same transaction and
that the advance rental payments constituted
valuable consideration we find it unnecessary to
consider all the other issues raised by Counsel
as to the validity or otherwise of the sale
agreement between the plaintiff and the
defendant. We only refer to the submissions by
Mr Ndhlovu that the sale agreement between
the plaintiff and the defendant did not comply
with Section 4 of the Statute of Frauds . We do
not accept these submissions. We have looked
at the sale agreement between the plaintiff and
the defendant and we find it a sufficient
memorandum to satisfy section 4 of the Statute
of Frauds. The parties’ names, the property to
be sold and bought, the consideration and the
signature of the parties are all in the sale
agreement: section 4 of the Statute of Frauds
will not require anything more than that. For these
reasons we hold that the learned trial Judge
misdirected himself when he held that on the
facts of this case there was no binding contract
between the plaintiff and the defendant.
(b) Meaning of ‘signing’ or ‘signed’ under Section 4 of the

Statute of Frauds, 1677
Mobil Oil (Zambia) Limited v. Loto Petroleum Distributors Limited

(1977) ZR 336
[The facts of the case appear from the judgment Of HADDEN, J]
The plaintiff claims possession of plots Nos 1708 and 1709,

Mungwi Road, Lusaka, and damages for loss of profit as a result
of non-use of the premises from the 1st March, 1976, until
possession is obtained, the defendant counterclaims and asks
for an order for specific performance of an agreement that had
been drawn by the plaintiff’s advocates and was awaiting
execution and asks for damages representing moneys paid for
providing security and insurance for the property, the expense
of repairing and maintaining the premises and loss and damage
resulting from the plaintiff’s refusal to supply the defendant with
fuel and lubricants since January, 1976.
In 1970, the defendant occupied part of plots Nos 1708 and
1709, Mungwi Road, Lusaka, which is the plaintiff’s Lusaka-
depot, following an agreement between the parties whereby the
defendant was appointed the plaintiff’s agent for the distribution
of the plaintiff’s products in an area extending from Mazabuka
to Kabwe. On the expiration of this agreement, a second

agreement was executed on the 24th February 1972, which
commenced on the 1st March 1972, and was for a period of
two years. By a letter dated the 21st February 1974, the plaintiff
informed the defendant that as it had not been possible to draw
a new agreement, it was suggested that the current agreement
continue until the 31st March 1974, to which suggestion the
defendant agreed.
The new agreement proposed by the plaintiff took longer to
prepare than was initially contemplated and a draft was not sent
to the defendant until about the middle of 1974. The reasons for
this delay resulted from negotiations regarding the amount of
credit that the plaintiff would be prepared to allow the defendant,
the rebates that were to be granted on the sale of the plaintiff’s
products and provision in the agreement for the plaintiff to
periodically inspect the defendant’s accounting records. After
having received the draft the defendant consulted his advocate
who in turn prepared a further draft and submitted this to the
plaintiff’s advocates under cover of a letter dated the 22nd
August 1974. Correspondence then passed between the
defendant’s advocates and the plaintiff and its advocates, not
only with regard to the new agreement but also with regard to
the possible purchase of the premises by the defendant, and a
caveat was entered on the property by the defendant in July
1975. Towards the end of September 1975, a further meeting
was held to discuss the new agreement; yet a further draft
(referred to herein as the final draft) had been prepared, this
time by the plaintiff, and during the discussions which lasted
about four hours, it was extensively amended. In November,
1975, certain cheques that the defendant had sent to the plaintiff
were dishonoured and all further negotiations ceased. Notices
terminating the agreement of the 24th February 1972, were sent
to the defendant who has refused to leave the premises, and the
defendant discontinued supplying its product to the plaintiff on
the 11th December 1975.
The agreement of the 24th February 1972, in

which the plaintiff was described as the company
and the defendant as the distributor, commenced
on the 1st March 1972, and was for a period of
two years or until terminated by either party
giving to the other not less than three months
notice in writing of its intention to terminate the
agreement PROVIDED THAT such notice shall
not be given before 1st March 1972 and
PROVIDED THAT the firm period of this
agreement may be renewed at the option of the
Company by the Company giving to the
Distributor notice in writing of its intention so to
renew on the same terms and conditions and not
later than . . .
No notice to renew the agreement was given by the plaintiff

although the plaintiff did indicate a willingness to enter into one.
After further negotiations had taken place, the plaintiff prepared
the final draft and this was discussed at the lengthy meeting
which was held towards the end of September, 1975, between
Mr Osbourne, the sales manager of the plaintiff company and
who had conducted most of the negotiations for a new
agreement on behalf of the plaintiff, Mr Low, a fellow employee
of the plaintiff company and Mr Tembo, the Managing Director
of the defendant company. The final draft was extensively
amended and both Mr Osbourne and Mr Tembo said that they
had both finally agreed to the terms and conditions of the final
draft as amended and all that was then required was for it to be
re-engrossed and signed.
In his evidence Mr Osbourne said :
I spent about four hours with Mr Tembo and we

agreed to the terms but on my return to Ndola I
received a message that the agreement had been
withdrawn. Mr Tembo kept changing his mind.
There was definitely no agreement reached
between the parties; and later on:
When I left the office of Mr Tembo it was

my understanding that we had agreed on
the terms. Before I got back to my office
I received a message to the effect that Mr
Tembo had changed his mind and wanted
to discuss it further. That is why the
agreement was not re-typed.
In his evidence about the meeting, Mr Tembo explained that

there had been a dispute between him and the plaintiff regarding
the issue of credit notes in favour of the defendant, that the final
draft was discussed in detail and altered to record the agreement
reached by the parties; that the plaintiff had agreed that a
separate lease would be drawn whereby the defendant would
acquire the property after a period of ten years and that notes to
this effect were endorsed on the final draft. The meeting ended
amicably and it was agreed that the credit notes would be
forwarded to the defendant. After the meeting the defendant
sent the following telex message to the plaintiff:
1. Instruct your lawyer to forward the contract of sale re

Lusaka depot - lease assignment to Loto to B.
Munyama.
2. Wholesale agreement - there have been some wording
corrections - omissions and additions. B. Munyama is
contacting your lawyers to finalise.
3. Finalise outstanding matters
K2,292.92 - credit note awaited
130.20 - credit note awaited
2,285.73 - credit note awaited
2,066.52 - credit note awaited
151.20 - credit note awaited
Tembo - Loto petroleum.
Section 4 of the Statute of Frauds, as amended by The Law

Reform (Enforcement of (contracts) Act, 1954, provides that a
contract relating to lands, tenements or hereditaments, or any
interest in or concerning them shall not be enforceable unless it
is evidenced by some memorandum or note thereof in writing,
signed by the party to be charged or by some person lawfully
authorised by him to sign. The final draft prepared by the plaintiff
is not signed but the documents is headed ‘Mobil Oil Zambia
Limited’; the names of both parties are set out; in the final draft,
and it concludes; As witness the hands the parties hereto or
their duly authorised representatives the day and year first
before written.
In Hubert v. Treherne and Others,41 an agreement of which
there had to be a memorandum or note in order to render it
enforceable in accordance with section 4 of the Statute of frauds
was prepared for the directors of the defendant company; the
names of both parties appeared in the agreement and it concluded
with the words: ‘As witness our hands.’ The document was not
signed by either of the parties. At page 1342, Tindai, CJ, said:
I am not satisfied that there is in this case any

signature at all. The names of the parties
41
133 ER 1338.
necessarily appear in the body of the instrument,
which would not otherwise be intelligible. To hold
that the mere introduction of the names of the
parties was sufficient would be almost to repeal
the statute. Suppose this agreement had been
prepared not by the secretary of the company
but by their attorney; could it have been
contended that the insertion by him of his clients’
name would have been a signature within the
statutes yet I am not aware that the power of an
attorney differs from that of a secretary or any
other person who may be employed to prepare
such an instrument. Then look at the form of
these articles of agreement, which conclude thus:
‘As witness our hands.’ These words evidently
show that the names of the contracting parties
were meant to be subscribed, and that it was not
intended that the insertion of the names in the
body of the instrument should operate by way of
signature.
At page 1343, Erskine, J, said:
It does not appear that these articles of

agreement were signed by the defendants, or by
any agent hereunto lawfully authorised by them.
We cannot help seeing that it was intended that
the signature of the parties should be added.
And at the same page, Maule, J, said:
The articles of agreement of the 25 March 1831

do not seem to me to be a memorandum signed
by anybody. Before the Statute of Frauds no one
could have entertained a doubt upon that point.
Since the statute the courts, anxious to relieve
parties against injustice, have not infrequently
stretched the language of the act. But none of
the cases hitherto decided under this statute have
gone so far as the present.
In Leeman v. Stocks,42 an auctioneer being the agent of the

defendant, sold a dwelling-house to the plaintiff. Before the
auction commenced he wrote the defendant’s name on a printed
form of agreement as well as the date of the sale and particulars
of the property. After the auctioneer had accepted the plaintiff’s
bid he inserted the plaintiff’s name in the agreement together
with the purchase price and requested the plaintiff to sign the
agreement over a revenue stamp in order to bind the plaintiff to
the contract. The plaintiff signed as requested but neither the
defendant nor the auctioneer signed it. The plaintiff sued for
specific performance of the agreement and the defendant
contended that there was no sufficient memorandum to satisfy
the statute, in that the document itself contemplated that it should
be signed by both parties. This was accepted by the court but it
also found that when the auctioneer obtained the plaintiff’s
signature to the document, neither the auctioneer nor the plaintiff
ever intended any other signature to be added to it; it was the
intention of both parties that the document should be the final
written record of the contract. Roxburgh, J, in considering
Hurbert v. Treherne, at page 1048 said:
The position in Hubert v. Treherne was at once

like and unlike the position in the present ease.
So far as the form of the agreement is concerned,
the resemblance is close. Plainly, in Hubert’s case
the agreement per se contemplated signature by
both parties. Plainly, in the present case, the
agreement per se likewise contemplates signature
by both parties. There is, however, the important
difference that in Hubert v. Treherne there was
no evidence outside the language of the
agreement. Here there is evidence which is, in
my judgment, conclusive, if it is admissible. I think
there is no doubt that Hubert v. Treherne is an
authority for the proposition that evidence is
admissible and that, while the form of agreement
is a matter of such importance that, in the
absence of any other evidence, a document in
this form would not be held to be a sufficient
memorandum to satisfy the Statute of Frauds,
nevertheless the fact that the document per se
42
[1951] 1 All ER 1043.
contemplated signature by both parties would not
be treated as conclusive, or, indeed, as paramount
evidence of the fact that the signature of both
parties was actually required, if there is evidence
to the contrary which the court accepts.
Roxburgh, J, then pointed out that in Hubert’s case the agreement

clearly contemplated that the contracting parties should sign it
and that it was not intended that the insertion of the names of
the parties in the body of the instrument should operate by way
of signature. He continued:
If that were all, the decision in Hubert’s case

would, no doubt, be of great assistance to the
vendor in the case before me, but COLTMAN, J,
said:
It is very important that this statute should

not be frittered away. Here, it appears that
it was intended that the signature of the
parties should be fixed. This differs from
the case of a bill of parcels delivered out
in the usual manner as a complete and
perfect instrument. It is said the parties
treated the articles of agreement as a
perfect instrument ...
Therefore, he plainly recognised that evidence of that matter

was admissible. Then he continues:
... It is not certain that the plaintiff saw the

articles; and there was no sufficient evidence of
any authority to give a out the copy on behalf of
the directors.
It is thus plain that he might have reached a different conclusion

the plaintiff had seen the articles and there was conclusive
evidence of authority to give out the copy on behalf of the
directors. ERSKINE, J, was even more explicit. He said:
It does not appear that these articles of

agreement were signed by the defendants, or
by an agent thereunto lawfully authorised by
them.
These passages seem to me to make it perfectly clear that it is

open to the court to investigate the circumstances to see whether
the document came into being as a perfect agreement, and, if
the court on the evidence finds that it did, then Hubert v.
Treherne seems also to recognise that the court is not prevented
from so holding by any impediment in law.
The court found that there was a sufficient memorandum to
bind the defendant and a decree of specific performance was
made.
In Evans v. Hoare and Another 43 [3] the defendant’s
authorised agents wrote a letter to the plaintiff, the defendant’s
name appearing at the beginning of the letter. It was presented
to the plaintiff for signature and he signed it. It was held that the
defendant’s name, inserted in the letter by his authorised agent,
amounted to a signature binding the defendant within section 4
of the Statute of Frauds.
The final draft that was discussed at the meeting between
Mr Osbourne, Mr Low and Mr Tembo, commences as follows:
MOBIL OIL ZAMBIA LTD.

Wholesale Distributors Agreement .
An agreement made this.......................... day of.........
1975 between MOBIL OIL ZAMBIA LIMITED, having
the registered office at Ndola in the Republic of Zambia
(hereinafter called ‘the Company’) of the one part, and
LOTO PETROLEUM DISTRIBUTORS LIMITED,
whose registered office is situated in Lusaka in the
Republic of Zambia (hereinafter called the ‘Distributor’)
of the other part.
WHEREBY IT IS A GREED:
I am satisfied that, following the decision of Evans v. Hoare

the plaintiff in inserting its name twice in that part of the final
draft to which I have referred has sufficiently signed the final
draft within the meaning of section 4 of the Statute of Frauds.
The court must, however, to use the words of Roxburgh, J, in
Leeman v. Stocks, ‘investigate the circumstances to see
whether the document came into being as a perfect
agreement, and, if the court on the evidence finds that it
did, then . . . the court is not prevented from so holding by
any impediment in law.’ After the meeting at the end of
43
[1892] 19 BT 93.
September 1975, both Mr Osbourne and Mr Tembo were of the
view that the final draft as amended represented the agreement
reached between the parties and they agreed to sign it and the
lease, once the agreement was re-typed and the lease prepared.
Although Mr Osbourne said he received a message on his return
to Ndola that Mr Tembo had changed his mind, I find that this
was not the case; Mr Tembo sent the telex message to Mr
Osbourne shortly after the meeting which clearly shows that he
had not changed his mind. I am satisfied that the final draft as
amended represents an agreement entered into by both the
plaintiff and the defendant and that it is a sufficient memorandum
for enforcing the agreement against the plaintiff as required by
the Statute….
(c) Statute of Frauds, 1677 – Doctrine of part performance –

Sufficient Acts of Part Performance
STEADMAN v. STEADMAN [1974] 2 All ER 977
In Steadman v. Steadman, the husband and wife were registered

as the joint proprietors of the house in which they lived with
their child. In July 1968 the wife left the husband and in
November, on application to the magistrates’ court, she obtained
a maintenance order of £2 a week for herself and £2.50 a week
for the child. In April 1970 the wife obtained a decree nisi of
divorce and in June she applied to the county court for an order
under s. 17 of the Married Women’s Property Act, 1882 that
the house be sold and the proceeds divided between herself and
the husband. Following considerable correspondence a tentative
agreement was reached in February 1972 whereby the wife
would transfer to the husband her interest in the house for £1,500.
At that time the husband was in arrears in paying the wife’s
maintenance in a sum of £194. On 2nd March the matter came
before the magistrates’ court in proceedings by the husband for
variation of the maintenance order and by the wife for
enforcement of payment of the arrears. Before the hearing the
parties met and came to an oral agreement, subject so far as
necessary to the approval of the justices, that the wife would
surrender her interest in the property for £1,500, that the wife
would consent to the discharge of the maintenance order in her
favour, that the parties would consent to the continuance of the
maintenance order in favour of the child, that the husband would,
before 30 March, pay £100 in part discharge of the arrears and

that the wife would consent to the remission of the balance of
the arrears. At the hearing the husband’s solicitor explained to
the justices what had been agreed and the clerk obtained the
wife’s confirmation of the terms. The justices thereupon
approved the agreement and, so far as it lay within their
jurisdiction, implemented it by varying the maintenance order
and adjourning the proceedings with regard to the arrears. The
court notified the husband in writing that: ‘The proceedings
have been adjourned for you to pay the sum of £100 not later
than the 30th March 1972, as all the arrears except that amount
have today been remitted. If you fail to pay as directed, further
proceedings will be commenced to recover the amount due.’
The husband paid the £100 by 30th March. The husband’s
solicitors prepared a form of transfer and sent it to the wife’s
solicitors for signature. They returned the transfer unsigned
stating that the wife did not find the terms acceptable. The
proceedings under s 17 of the 1882 Act were restored for hearing,
the wife contending that the agreement of 2nd March, being an
agreement for the disposition of an interest in land, was
unenforceable under s. 40a of the Law of Property Act 1925 in
that there was no note or memorandum in writing and no act of
part performance.
Held (Lord Morris of Borth-y-Gest dissenting) – The
agreement of 2nd March was enforceable against the wife for
the following reasons—
(i) In order to establish facts amounting to part
performance it was necessary for a plaintiff to show
that he had acted to his detriment and that the acts in
question were such as to indicate on a balance of
probabilities that they had been performed in reliance
on a contract with the defendant which was consistent
with the contract alleged. There was no general rule
that the payment of a sum of money could never
constitute part performance.
(ii) Although the payment by the husband to the wife of
£100 would, by itself, have been insufficient to constitute
part performance, that payment taken in conjunction
with the announcement of the oral agreement to the
justices, the abandonment by the husband of his right to
claim full remission of arrears of maintenance and the
preparation and delivery to the wife of a form of transfer
for her signature amounted to acts of part performance
by the husband in that the acts were such as to indicate
that they had been carried by him in reliance on a contract
with the wife of the nature alleged. In the circumstances
it would therefore be inequitable to allow the wife to
rely on the defence under s. 40 (1) of the 1925 Act and
oral and affidavit evidence was admissible to prove the
contract.
LORD SIMON OF GLAISDALE: My Lords, the facts which lie behind

the issues here have been stated by Edmund Davies, LJ in the
Court of Appeal ([1973] 3 All ER 977, [1974] QB 161) and by
my noble and learned friends who have preceded me. The
respondent (‘the husband’) in effect is seeking to enforce that
term of what the learned registrar called ‘an oral package deal’
(by which is meant an indivisible contract consisting of a number
of obligations on each side) which relates to the disposition of
an interest in land. The contract (of 2nd March 1972) disposed
of the various issues raised by three legal processes: (i) a
summons under s. 17 of the Married Women’s Property Act,
1882 taken out by the appellant (‘the wife’); (ii) a summons
under the Matrimonial Proceedings (Magistrates’ Courts) Act,
1960 taken out by the husband for variation of a maintenance
order which had been made in favour of the wife and the child
of the marriage; (iii) a summons by the wife for enforcement of
payment of arrears of £194 which had accrued under the
maintenance order. The terms of the contract were necessarily
conditional on approval by the justices at the hearing which would
immediately ensue. They were in effect as follows: (i) the wife
would consent to the discharge of the maintenance order of
£1·75 weekly in her favour; (2) the husband and the wife would
consent to the continuance of the maintenance order of £2·50
weekly in respect of the child; (3) the husband would, before
30TH March 1972, pay £100 in part discharge of the arrears; (4)
the wife would consent to the remission of the balance of the
arrears; (5) the wife would surrender to the husband the interest
which she claimed in the former matrimonial home; (6) the
husband would pay her £1,500 for such interest.
As will appear hereafter, it is only the obligations incumbent
on the husband which are relevant to the doctrine of part
performance, with which your Lordships are concerned. But,
in addition to his positive obligations set out under heads (2), (3)
and (6) above, which would on execution involve detriment to

him, there were some tacit forbearances by the husband: (a) it
was open to him, on his complaint for variation of the maintenance
order, to ask the justices to reduce the maintenance order in
respect of the child; (b) it would be unusual, to say the least, for
justices to order the discharge of maintenance arrears otherwise
than by a weekly installment order; before ordering a payment
of £100 within 28 days they would require positive proof that
the husband had such a sum at his immediate disposal; the
husband forbore from putting the wife to proof; (c) the
enforcement of arrears of maintenance is a matter of judicial
discretion, so that it was open to the husband to ask the court to
discharge the entire arrears; (d) it is the practice not to enforce
more than a year’s arrears of maintenance (Pilcher v. Pilcher);
the evidence does not show how long the arrears had been
accumulating (this would depend mainly but not exclusively on
whether the husband had been keeping up the maintenance
payments in respect of the child); and it might be that the justices
would have refused to enforce arrears of £100, even by
installments.
I would emphasise that the agreement generally, and various
terms of it specifically, provided for the justices to be informed
as to what had been agreed and to be asked to implement the
matters which lay within their jurisdiction.
The justices, on being informed of the agreement between
the parties and on being satisfied that the wife was a freely and
knowledgeable consenting party, approved it, and implemented
so much of it as lay within their jurisdiction, by varying the
maintenance order on the husband’s complaint and by adjourning
the wife’s complaint for variation, in order that the husband might
pay the £100 not later than 30 March 1972; they remitted the
balance of the arrears. This adjournment and remission were
the only positive orders that the justices made on the wife’s
complaint; they did not actually order the husband to pay the
£100, though the order states: ‘If you fail to pay as directed,
further proceedings will be commenced to recover the amount
due.’ There was, in other words, no merger of the husband’s
contractual obligation to pay £100 in a subsequent judgment
debt. On the justices’ approval the agreement between the
parties became contractually binding (Smallman v. Smallman),
subject to any question of enforceability in view of the want of
writing and signature to evidence it.
This is one of the most difficult situations where two legal
principles are in competition. The first legal principle is embodied
in s. 40 (1) of the Law of Property Act, 1925 which states:
No action may be brought upon any contract for

the sale or other disposition of land or any interest
in land, unless the agreement upon which such
action is brought, or some memorandum or note
thereof, is in writing, and signed by the party to
be charged or by some other person thereunto
by him lawfully authorised.
This provision replaced that part of s. 4 of the Statute of Frauds

(1677) which related to interests in land. The preamble to the
Statute of Frauds explained its object: ‘For prevention of many
fraudulent Practices, which are commonly endeavored to be
upheld by Perjury or Subornation of Perjury …’ The ‘mischief’
for which the statute was providing a remedy was, therefore,
that some transactions were being conducted orally in such a
way that important interests were liable to be adversely affected
by a mode of operation that invited forensic mendacity. The
remedy was to require some greater formality in the record of
such transaction than mere word of mouth if it was to be
enforced. The continuing need for such a remedy for such a
mischief was apparently recognised as subsisting when the law
of landed property was recast in 1925.
The second, competing, legal principle was evoked when,
almost from the moment of passing of the Statute of Frauds, it
was appreciated that it was being used for a variant of
unconscionable dealing, which the statute itself was designed to
remedy. A party to an oral contract for the disposition of an
interest in land could, despite performance of the reciprocal terms
by the other party, by virtue of the statute disclaim liability for
his own performance on the ground that the contract had not
been in writing. Common law was helpless. But equity, with its
purpose of vindicating good faith and with its remedies of
injunction and specific performance, could deal with the situation.
The Statute of Frauds did not make such contracts void but
merely unenforceable; and, if the statute was to be relied on as
a defence, it had to be specifically pleaded. Where, therefore, a
party to a contract unenforceable under the Statute of Frauds
stood by while the other party acted to his detriment in
performance of his own contractual obligations, the first party

would be precluded by the Court of Chancery from claiming
exoneration, on the ground that the contract was unenforceable,
from performance of his reciprocal obligations; and the court
would, if required, decree specific performance of the contract.
Equity would not, as it was put, allow the Statute of Frauds ‘to
be used as an engine of fraud’. This became known as the
doctrine of part performance—the ‘part’ performance being
that of the party who had, to the knowledge of the other party,
acted to his detriment in carrying out irremediably his own
obligations (or some significant part of them) under the otherwise
unenforceable contract. This competing principle has also
received statutory recognition, as regards contracts affecting
interests in land, in s 40 (2) of the Law of Property Act, 1925.
But what was in origin a rule of substantive law designed to
vindicate conscientious dealing seems to have come in time
sometimes to have been considered somewhat as a rule of
evidence. It is easy to appreciate how this happened. Part
performance could be viewed as a way of proving an agreement
falling within s 4 notwithstanding the absence of writing. Seen
as such it was no doubt considered necessary to frame stringent
requirements to prevent the doctrine from carting a sedan chair
through the provision of the statute. If part performance was to
be evidence of a contract which could not otherwise and directly
be proved, the acts of part performance should themselves
intrinsically be capable of proving some such contract as that
alleged. Oral evidence was not admissible to connect them
with the alleged contract: otherwise, it was held, the statutory
object would be defeated by allowing an interest in land to pass
on mere oral testimony. As the Earl of Selborne LC put it in
Maddison v. Alderson44 (in a passage I label ‘(A)’ for ease of
reference later):
(A) “The doctrine … has been confined …

within limits intended to prevent a recurrence of
the mischief which the statute was passed to
suppress … All the authorities shew that the
acts relied upon as part performance must be
unequivocally, and in their own nature, referable
to some agreement as that alleged … ’
44
(1883) 8 App. Cas 467 at 478, 479.
It may be questionable whether it was direct respect for the
statute which led to such confinement of the doctrine, or whether
it was not rather because part performance seems sometimes
to have been regarded as an alternative way of proving an oral
agreement; for equity allowed a person to prove by parol
evidence that land conveyed to another was so conveyed on
trust for himself, notwithstanding s 7 of the Statute of Frauds:
Rochefoucauld v. Boustead ([1897] 1 Ch 196 at 206);
Bannister v. Bannister ([1948] 2 All ER 133 at 136)—the
passages show that here, too, the guiding rule was that the court
would not allow the statute to be used as a cloak for fraud.
However that may be, the speech of the Earl of Selborne LC
has always been regarded as authoritative, notwithstanding that
what he said about part performance was, strictly, obiter.
But Lord Selborne, LC went on to effect a complete
reconciliation between the provisions of the statute and the
doctrine of part performance in a passage ((1883) 8 App. Cas.
at 475, 476) which is of crucial importance to the instant appeal,
and which I have labelled ‘(B)’:
(B) ‘In a suit founded on such part performance,

the defendant is really “charged” upon the equities
resulting from the acts done in execution of the
contract, and not (within the meaning of the
statute) upon the contract itself. If such equities
were excluded, injustice of a kind which the
statute cannot be thought to have had in
contemplation would follow … All the acts done
must be referred to the actual contract, which is
the measure and test of their legal and equitable
character and consequences … The matter has
advanced beyond the stage of contract; and the
equities which arise out of the stage which it has
reached cannot be administered unless the
contract is regarded. The choice is between
undoing what has been done (which is not always
possible or, if possible, just) and completing what
has been left undone … it is not arbitrary or
unreasonable to hold that when the statute says
that no action is to be brought to charge any
person upon a contract concerning land, it has in
view the simple case in which he is charged upon
the contract only, and not that in which there are

equities resulting from res gestae subsequent to
and arising out of the contract. So long as the
connection of those res gestae with the alleged
contract does not depend upon the mere parol
testimony, but is reasonably to be inferred from
the res gestae themselves, justice seems to
require some such limitation of the scope of the
statute …
The following questions arise for determination in relation to the

facts of the instant case: (1) what is meant by res gestae in
passage (B)? Are they different from acts of part performance
of the alleged contract? If so, do they impose some limitation—
eg contemporaneity? Or are they words of extension—
permitting, for example, evidence of explanatory acts antecedent
to the alleged contract (such as the correspondence between
the solicitors in the instant case)? (2) In passage (A) Lord
Selborne, LC says ‘referable to some such agreement as that
alleged’: in passage (B), ‘referred to the actual contract’. Is
there a discrepancy here? What must be the relationship
between the acts of part performance and/or the res gestae (if
there is a distinction), on the one hand, and the alleged contract,
on the other, in order to raise an equity precluding the other
party from relying on the statute? (3) Must the alleged (acts) of
part performance indicate specifically the term of the alleged
contract to which the statute is pleaded as a defence (eg the
term relating to the disposition of an interest in land), or is it
sufficient that the alleged (acts) indicate some contract? (4)
What does ‘unequivocally’ in passage (A) mean in this
connection? What is the standard of proof required? (5) What
does ‘of their own nature’ in passage (A) mean? Must each
act of alleged part performance ‘of its own nature’ be separately
referable to the alleged, or ‘some such’, contract, or can they
be regarded cumulatively—reinforcing each other, so to speak?
(6) For what purpose, if at all, is oral evidence admissible? (7)
Can payment of a sum of money ever be a relevant act of part
performance? (8) What issues arise at the trial and how are
they to be resolved?
These questions to some extent overlap. I do not think that
it is possible to reconcile all the authorities and dicta. There
seems to be an uneasy oscillation between regarding the doctrine
as a principle vindicating conscientious dealing and as a rule of
evidence. Concurrently with this, and reinforcing the latter view,
there seems to have been a hardening of equity’s arteries, an
increasing technicality until quite recent times. The chancellor’s
foot evolves into the vice-chancellor’s footrule.
(1) Res gestae (ie things done). The concept is more familiar
in the law of evidence, where it relates to the admissibility of
acts, declarations and incidents which either are constituents of,
or accompany and explain, the fact or transaction in question
(see Phipson on Evidence). Lord Selborne, LC probably had
two reasons for using the words in preference to ‘acts of part
performance of the alleged contract’: (i) they are sometimes
used in the law of evidence to mark the distinction between the
principal fact or transaction in question, on the one hand (as to
which evidence is always admissible), and ancillary facts, on
the other (as to which evidence is only admissible if they are so
closely connected with the principal fact as either to form one
continuous transaction with it or to be necessary to give meaning
to it): Lord Selborne, LC was emphasising that what gave rise
to the equity was, not the contract itself, but what was done
ancillary to it; (ii) one rationale for the res gestae rule of evidence
is that the probability of an occurrence may often be tested by
considering its attendant circumstances (Dysart Peerage Case):
so here, once it was considered incumbent to do equity without
undermining the statute, it was reasonable to look for attendant
circumstances which inherently rendered it probable that there
had been an antecedent contract the obligations of which it would
be inequitable to allow a party to escape. But I do not think that
Lord Selborne, LC intended to import generally the rules of the
law of evidence relating to res gestae. Those rules often extend
to admitting acts and declarations antecedent to the principal
fact where they either form one continuous transaction with it
or are necessary to explain it. But an act or declaration
antecedent to a contract cannot be part performance of it; and
it was the doctrine of part performance which Lord Selborne,
LC was concerned with. He speaks ((1883) 8 App. Cas. at
476) of ‘res gestae subsequent to and arising out of the contract’.
I do not think, therefore, that the correspondence between the
solicitors before 2nd March 1972 can avail the husband in
obviating the plea of s 40 (1) (though it is available to aid him
in establishing the alleged agreement of 2nd March 1972, once
the plea of the statute is obviated). Then there is authority
that acts preparatory, not merely to the contract, but to the

performance of a term of the contract (such as compiling an
abstract of title or making a valuation) are not sufficient acts of
part performance: but these certainly would seem to be res
gestae pursuant to the contract involving detriment to the plaintiff.
Did the preparation of the conveyance on behalf of the husband
in the instant case stand alone, it might be necessary to give
consideration to this line of authority: however, on the view I
take of other matters it is not called for. Again, I do not think
that Lord Selborne, LC’s description of acts of part performance
as res gestae under the contract imports from the law of evidence
into this branch of the law the requirement of substantial
contemporaneity: equity’s doctrine of laches and the requirement
of referability provide superior and less technical safeguards
against injustice. On the other hand, the fact that Lord Selborne,
LC used the term res gestae throws some light on the
admissibility of oral testimony in this branch of the law, since in
the law of evidence the doctrine of res gestae is very largely
concerned with the question of admissibility of oral declarations.
(2) ‘Some such agreement’/‘the actual agreement’. I think
that the discrepancy in expression foreshadows Upjohn LJ’s
formulation of the rule—the acts must be such as ‘prove the
existence of some contract, and are consistent with the contract
alleged’ (Kingswood Estate Co Ltd v. Anderson ([1962] 3 All
ER at 604, [1963] 2 QB at 189), citing Fry on Specific
Performance; see also Wakeham v. Mackenzie ([1968] 2 All
ER 783 at 786, 787, [1968] 1 WLR 1175 at 1180)). Alternatively,
Lord Selborne, LC might have been drawing a distinction between
the stage of part performance giving rise to equities in favour of
the plaintiff which preclude the defendant from pleading the
statute, and the next state where the plaintiff may lead evidence
of the oral contract with sufficient particularity that equity will
enforce it. Both must now be accepted as valid ways of
considering the rule.
The law here is not logical: it represents the compromise of
the two principles to which I referred near the outset of this
speech. If the contract alleged is such that it ought not to depend
on oral testimony, it is this contract, not merely some contract,
that the acts should prove. If the plaintiff has so performed his
obligations under the contract that it would be unconscionable
for the defendant to plead the statute, it is immaterial whether
or not the plaintiff’s acts prove the contract—let alone some
other contract. But it is the sort of illogical compromise, doing
some deference to each of two competing and inconsistent
principles, in which English law abounds. There is no reason to
disturb it so long as it does substantial justice, as it seems to
have done in all the recent reported cases. However, I have
already ventured to point out that equity did not find it necessary
to create the same difficulties as regards s 7 of the statute—
unembarrassed by a long line of authority, it took the direct route
to oral evidence.
But the law as stated by Upjohn, LJ is juridically justifiable.
If the plaintiff proves that he carried out acts in part performance
of some contract to which the defendant was a party while the
latter stood by, it becomes inequitable that the latter should be
allowed to plead, in exoneration of reciprocal obligations, that
any such contract was unenforceable by reason of the statute—
particularly when it is borne in mind that few acts of performance
point exclusively to a particular contract, least of all a particular
multi-term contract. But ‘some such contract’ must be a contract
with the defendant—otherwise no equity arises against him to
preclude his pleading the statute.
(3) Must the act of part performance indicate that term of
the contract which concerns the disposition of an interest in
land? This question has often been answered in the affirmative.
Snell’s Principles of Equity for example states: ‘… the acts
must indicate the land concerned’. But where, as so often, the
only term to be performed by the defendant is the transfer of
the interest in land, the fulfilment of the other conditions stipulated
by equity will generally involve that the effective act of part
performance indicates the land concerned. The Earl of Selborne,
LC’s ‘referable to some such agreement as that alleged’ is not
so specific; and it has now, in any event, received Upjohn, LJ’s
gloss. In Wakeham v. Mackenzie a woman agreed to surrender
her rent-restricted flat and keep house for an elderly widower
in consideration of his oral promise to leave her his house by
will: her action was held to be sufficient part performance to
make the widower’s oral promise binding on his personal
representative. The case must be compared with Maddison v.
Alderson, where the only material distinction was that woman
had no house of her own to give up. This distinction might be
sufficient to justify the inference in the later case that the
housekeeper’s actions implied a quid pro quo, a bargain, which
had not been a justifiable inference in the earlier case (see Lord
Blackburn in Maddison v. Alderson (8 App. Cas. at 487)); but

they could hardly be said to have indicated a bargain a term of
which related to the widower’s house.
It is unnecessary to determine the point in the instant case.
The husband’s acts of part performance included two which
specifically indicated the land in question: (1) procuring his
solicitor to inform the justices of the entire bargain and to invite
them to implement such of its terms as concerned them; (ii)
procuring his solicitor to carry out the obligation which, under
the bargain, the husband had assumed of drafting the conveyance
and sending it to the wife (see Williams on Title)—this was the
performance of an obligation arising from the contract, not
preparation for performance.
Other acts of part performance by the husband proved that
there had been some contract with the wife, though without
specifically indicating those terms which concerned the house.
The consent to the justices’ orders and the payment of £100
are, in my view, only reasonably intelligible on the hypothesis
that the issues raised by the cross-summonses in the magistrates’
court had been settled by agreement. As for the other limb of
Upjohn, LJ’s formulation of the rule, the husband’s acts were
consistent with the contract alleged by him.
(4) ‘Unequivocally’. This could bear three meanings: (i)
referable to the alleged contract and no other; (ii) clearly, on
more than a mere balance of probabilities; (iii) not equally
referable to the hypothesis of a contract or some other
hypothesis, ie on the preponderance of probability.
The first view was apparently held at one time—in logical
consistency with the principle that the doctrine of part
performance should not be allowed to undermine the statutory
insistence that the contract must not be proved by oral testimony.
It would seem, indeed, to be a reflection of the tendency to
regard the doctrine of part performance as a rule of evidence.
But it must often have led to a failure of justice, to equity
helplessly standing by while the statute was used as an engine
of fraud; since, as Snell puts it ‘Few acts of part performance
are so eloquent as to point to one particular contract alone’.
This idea is therefore now to be regarded as ‘long exploded’, to
use Upjohn, LJ’s expression in Kingswood Estate Co Ltd v.
Anderson ([1962] 3 All ER at 604, [1963] 2 QB at 189).
As for the second view, there would be nothing unique in
equity requiring that the act of part performance should indicate
beyond doubt that it was in pursuance of a contractual obligation.
For example, for rectification, there must be ‘strong irrefragable
evidence’ of mistake (Countess of Shelburne v. Earl of
Inchiquin ((1784) 1 Bro CC 338 at 341)): it must ‘leave no fair
and reasonable doubt upon the mind’ (Fowler v. Fowler ((1859)
4 De G & J 250 at 265)); there must be ‘convincing proof’
(Joscelyne v. Nissen ([1970] 1 All ER 1213 at 1222, [1970] 2
QB 86 at 98)). A similar standard is probably required to establish
a secret trust (Ottaway v. Norman ([1971] 3 All ER 1325 at
1332, [1972] Ch. 698 at 712)). Or that persons who have lived
together purporting to be husband and wife were not married,
especially if there had been some ceremony (Morris v. Davies;
Piers v. Piers; Hill v. Hill). Or to prove the abandonment of a
domicile of origin (Winans v. Attorney General).
Nevertheless, the general standard of proof in civil
proceedings is proof on a balance of probabilities. In some of
the situations referred to in the preceding paragraph justice may
call for a higher standard of proof; but I can see no reason why
it should here—though no doubt, here as elsewhere, the evidence
(and the nexus) will be more jealously scrutinised where the
other party to the alleged contract is deceased. In 1000 passage
(B) ((1883) 8 App. Cas. at 475, 476) the Earl of Selborne, LC
used the words ‘reasonably to be inferred’. In Wakeham v.
Mackenzie the alleged acts of part performance can only on a
balance of probability have been more likely to have been in
pursuance of some contract than otherwise. I am therefore of
opinion not only that facts relied on to prove acts of part
performance must be established merely on a balance of
probability, but that it is sufficient if it be shown that it was more
likely than not that those acts were in performance of some
contract to which the defendant was a party.
(5) ‘Of their own nature’. This means merely that oral
testimony is not admissible to show that the acts relied on were
in part performance of a contract: the acts must themselves on
a balance of probability indicate this. But it does not mean that
each act must be considered seriatim by itself. The acts may
throw light on each other; and there is no reason to exclude
light. In the instant case, for example, the payment of £100
would, standing by itself, have been equivocal: it would not
even marginally have been more suggestive of performance of
a contractual term than otherwise. But taken together with the
other acts and forbearances of the husband in relation to the
summary matrimonial proceedings it becomes strongly indicative

of a bargain. So, too, the preparation of the draft conveyance
when taken together with the statements made to the justices—
provided that the latter were admissible in evidence.
(6) Oral evidence. The extent of the exclusionary rule is to
preclude oral evidence to establish that the acts relied on were
in part performance of a contract; in other words, the nexus
between the acts and the alleged contract, or some such, cannot
be established by oral testimony at the trial. But the acts
themselves may be, and generally are, proved orally. Moreover,
spoken words may themselves be part performance of a
contract.
Words spoken are facts just as much as any

other action by a human being. If the speaking
of the words is a relevant fact, a witness may
give evidence that they were spoken.
(Lord Wilberforce in Ratten v. Reginam ([1971] 3 All ER 801

at 805, [1972] AC 378 at 387), in relation to the evidentiary rule
of res gestae). As such they are to be considered as of the
nature of real evidence (see Lord Normand in Teper v. Reginam
([1952] 2 All ER 447 at 449, 450, [1952] AC 480 at 487)). So, in
the instant case, the bargain between the parties necessitated
the justices being informed of what had been agreed, as a
preliminary to the invitation to them to implement part of the
agreement. The statement to the justices was part performance
of the bargain, including those terms adverse to the husband;
and oral evidence is admissible as to what was said to them.
But ‘human utterance is both a fact and a means of
communication’ (Lord Normand in Teper v. Reginam ([1952]
2 All ER at 449, [1952] AC at 486)). When it comes to
determining whether acts of part performance of their own
nature indicate the contract alleged, or some such, words
inevitably speak more specifically than deeds; but that is no
reason for excluding them either as facts or as means of
communication. The statement to the justices as an act of part
performance indicated in terms that there had been an agreement
between the parties and what were its provisions. Moreover,
the ensuing actions of the husband (in inviting the order of the
justices, instructing his solicitor to prepare the conveyance, and
paying the £100) must be viewed in the light of the statement to
the justices—they were integral res gestae in every sense of
that expression.
(7) Payment of money. It has sometimes been said that
payment of money can never be a sufficient act of part
performance to raise the required equity in favour of the
plaintiff—or, more narrowly, that payment of part or even the
whole of the purchase price for an interest in land is not a
sufficient act of part performance. But neither of the reasons
put forward for the rule justifies it as framed so absolutely. The
first was that a plaintiff seeking to enforce an oral agreement to
which the statute relates needs the aid of equity; and equity
would not lend its aid if there was an adequate remedy at law.
It was argued that a payment could be recovered at law, so
there was no call for the intervention of equity. But the payee
might not be able to repay the money (he might have gone
bankrupt), or the land might have a particular significance for
the plaintiff (cf the equitable order for specific delivery of a
chattel of particular value to the owner: Duke of Somerset v.
Cookson), or it might have greatly risen in value since the
payment, or money may have lost some of its value. So it was
sought to justify the rule, alternatively, on the ground that payment
of money is always an equivocal act: it need not imply a pre-
existing contract, but is equally consistent with many other
hypotheses. This may be so in many cases, but it is not so in all
cases. Oral testimony may not be given to connect the payment
with a contract; but circumstances established by admissible
evidence (other acts of part performance, for example) may
make a nexus with a contract the probable hypothesis. In the
instant case, for example, what was said (ie done) in the
magistrates’ court in part performance of the agreement makes
it plain that the payment of the £100 was also in part performance
of the agreement and not a spontaneous act of generosity or
discharge of a legal obligation or attributable to any other
hypothesis.
(8) The issues at the trial. A plaintiff alleges an oral
agreement. If the defendant does not plead the statute, the
plaintiff may prove the agreement by any relevant evidence,
including oral testimony. But if the defendant does plead the
statute, the plaintiff is barred unless he can establish that the
defendant’s plea of the statute should not be admitted because
its maintenance would be unconscionable. To do this the plaintiff
has to prove that: (i) on balance of probability he acted to his
detriment; (ii) it was more probable than not he so acted because

he was contractually obliged to the defendant to do so; (iii) such
actions were consistent with the oral agreement which he
alleges. As regards (i), the plaintiff’s detrimental actions can
include words; and he can prove them by any relevant evidence,
including oral testimony. But he cannot lead oral or any testimony
(other than a written confession by the defendant which satisfies
the requirements of the statute) as to (ii) and (iii); the facts
proved under (i) must themselves answer (ii) and (iii) in his
favour. But if all three requirements are satisfied, an equity
arises in his favour which precludes the defendant from relying
on the statute; and the plaintiff can then lead evidence (including
oral evidence) to establish the oral agreement on which he bases
his claim for relief, as if the statute had never been pleaded. He
still, of course, has to prove such oral agreement on a balance
of probability; and if the other party is dead the evidence will be
rigorously scrutinised.
In the instant case the husband proved to the satisfaction of
the registrar the following acts which were to his detriment: (i)
procuring his solicitor to consent an order by the justices which
placed him under a continuing legal obligation; (ii) procuring his
solicitor to forbear from seeking from the justices orders which
might have been more advantageous to himself; (iii) paying £100
to the wife before 30 March 1972; (iv) procuring his solicitor to
draft a conveyance for execution by the wife. Even if, contrary
to my view, these matters could be considered in isolation from
the statements inviting the justices to play their part in
implementing them, they still, in my opinion, make it more probable
than not that the husband acted as he did because he had
contracted with the wife to do so; and they are consistent with
the agreement which the husband alleges. This makes it
inequitable for the wife to allege that the agreement was
unenforceable because the formalities required by s 40(1) were
not complied with. The registrar, therefore, rightly admitted
oral and affidavit evidence to establish the agreement alleged
by the husband, which he found proved.
I would therefore dismiss the appeal.
(d) Act of Part Performance – payment of deposit – act of part
performance must be referable to the contract or
transaction.
Mpashi v. Avondale Housing Project Limited, Supreme Court

Judgment No. 12 of 1992
Court delivered by CHAILA, JS]
The appellant’s case was that she was offered a house known
as Sub-division 942/A/378a Avondale in Lusaka by the
respondent at the price K125,000. The offer was made in writing
to her. She accepted the offer, paid the sum of K15,000 on 14th
August 1986, and paid a further sum of K10,000 on 14 January
1987. After she had made those payments the respondent’s
advocate Messrs Chaane and Company drew up a contract of
sale which was sent to her advocates for engrossment. Her
advocates sent back the contract on 11th May 1986. Later her
advocates made enquiries as to whether the contract of sale or
assignment had been concluded. She then received a letter from,
the consultants of the respondent company indicating that the
respondent was going to breach the contract. On 12 October
1987 the respondent company made a fresh offer which the
appellant rejected because the earlier offer was still valid. The
negotiations broke down and the appellant took out a summons
on a specially endorsed writ.
The learned commissioner heard the matter and took the
affidavit evidence and the documents into account and came to
the conclusion that the payment of the deposit of K25,000 did
not constitute part performance and that the appellant was not
entitled to an order for specific performance of the contract.
The learned commissioner dismissed the action and ordered that
the deposit of K25,000 plus interest at the ruling bank rate be
refunded to the appellant.
Mr Mabutwe counsel for the appellant submitted two
grounds. The first ground is that the learned trial commissioner
erred in law and in fact in holding that the negotiations for
contract had not been completed and that, therefore, there was
no contract. Mr Mabutwe has argued that there was a valid
contract. He has argued that it is trite law of contract that there
must be an offer and acceptance. There was an offer made
and the offer was duly accepted. He has argued that the letter
of offer sent to the appellant had a clause which read ‘subject
to Contract’. To him that meant once the appellant had appended
her signature then there was a valid contract. He has argued
that there was no need for both parties to sign the form of
contract. He has maintained that the respondents had already
committed themselves. He has maintained that it was an
accepted fact and the matter was not in dispute that the appellant
had signed the contract and in the circumstances of this particular
case the contract was unilateral. Mr Mabutwe has further argued
that once the appellant had entered into the contract she was
put later at disadvantage when the respondent increased the
price. The increasing of the price put her out of means to purchase
the house. Mr Mabutwe has argued that if the court agreed
with his argument that there was a valid contract then the
appellant has been greatly prejudiced by the turn of the events.
He urged the court that the property be sold at a reasonable
price. Before Mr Mabutwe, completed his argument Mr
Mundashi, counsel for the respondent informed the court that
after the High Court ruling, the house was offered to the appellant
at a higher price. The house was subsequently sold. The
respondent offered a refund to the appellant but the appellant
refused. Mr Mabutwe replied that money was not accepted
since the case was still pending before the court. The other
ground of appeal is that the learned trial commissioner found as
a fact that the appellant paid a total sum of K25,000 and which
sum was duly accepted by the respondent but the learned trial
commissioner refused to order for specific performance to which
the appellant was still entitled. The learned counsel, on part
performance in his heads of argument, has argued that previously
it was thought that mere payment of money could never be an
act of part performance. But, however, there is no such general
rule it all depends upon the circumstances obtaining in a given
situation. He has argued that the circumstances of this case the
facts warrant a specific performance decree to be granted by
the court. Mr Mundashi, counsel for the respondent had filed
two heads of arguments.
(1) The learned trial commissioner did not err when he ruled
that there was no binding sale as the earlier agreement
postponed the incidence of a binding contract by stating that
that agreement was ‘subject to contract’. c.f. Cheshire and
Fifoot’s Law of Contract, 10th Edition page 34.
(2) The mere payment of a deposit of K25,000.00 did not
constitute part performance so as to make a clear inference of
an intention to be bound such as if after payment of the deposit
the plaintiff was let into possession of the premises c.f. Delaney
v. Smith (1946) 2 All ER at page 23.
Mr Mundashi has argued that there was no valid contract
concluded between the parties as understood by law of contract
and sale of land. He has argued that the letter which was sent
to the appellant did not amount to an irrevocable offer. He later
spoke of ‘subject to contract’. He has referred the court to
Cheshire and Fifoot’s Law of Contract 10th Edition page 34.
He has argued that the letter in question could not be construed
as creating an irrevocable offer because of the words ‘subject
to contract’. Mr Mundashi has further argued that there was no
evidence in court below and that the appellant was the only
person to sign on payment of K25,000.00 Mr Mundashi has
argued that there was no sufficient act to attract specific
performance. The appellant was not given possession of the
house in issue. ‘The house had been sold. The sale took place
before the appeal was lodged. Mr Mundashi had further
submitted that if the court decided there was a contract which
had been breached then the court should consider damages would
be, in his opinion the difference of the value in 1987 and value at
the time the appeal was argued on 15th August, 1991. Counsel
for the appellant has referred to various authorities, these are:
(1) Mobil oil (Zambia) Limited v. Loto Petroleum
Distributors Limited (1977) ZRL 336.
(2) Mufalo v. Nganga SCZ Judgement No. 24 of 1988.
(3) Steadman v. Steadman (1975) 2 All ER 1974.
(4) Order 66 Rule I of the Rules of the Supreme Court.
(5) The Land (conversion of Titles) Act.
(6) The Statutes of Frauds 1677.
In the case of Mobil Oil (Zambia) Limited v. Loto Petroleum
Distributors Limited,45 a High Court case, the court was
concerned with interpreting a draft agreement and the
defendant’s counter-claim for specific performance of the
agreement. The court held, after going through various
authorities:
(1) The plaintiff by inserting its name twice in the final draft
agreement had sufficiently signed the agreement within
45
(1977) ZR 336.
the meaning of section 4 of the Statute of Frauds and

the agreement was enforceable.
(2) The court must investigate the circumstances to see
whether the document came into being as a perfect
agreement, and if the court on the evidence finds that it
did, then the court is not prevented from so holding by
any impediment of law.
(3) A court will not grant a decree for specific performance
of a contract if the party seeking the decree can obtain,
a sufficient remedy by a judgment for damages and such
a decree not to be made when it would be impracticable
to secure compliance with it. The High Court judge opted
for granting damages instead of specific performance.
In the case of Steadman referred to above the court held:
(1) That the alleged acts of part performance had to be

considered in their surrounding circumstances and if they
pointed on a balance of probabilities to some contract
between the parties and either showed the nature of or
were consistent with the oral agreement alleged then
there was sufficient part performance of the agreement
for the purpose of section 40 (2) of the Law of Property
Act 1925.
(2) It was further held in the same case that the act of part
performance did not have to be referable to that part of
the agreement for the disposition of an interest in land
and that there is no general rule that the payment of
money cannot constitute an act of part performance of
a parole contract within the meaning of section 40 of the
Law of Property Act.
Mr Mundashi counsel for the respondent in his heads of argument

has relied on two authorities. The first authority is Cheshire
and Fifoot’s Law of Contract, 10th Edition page 34. The
second authority is the case of Delaney v. Smith (TP) Ltd in
which the facts were that the appellants were the owners of a
damaged dwelling house which was being repaired. In April,
1944, an oral agreement was entered into between the respondent
and the appellants agent, whereby the respondent was to become
tenant of the house when ready for occupation, at a weekly
rental two installments of which were payable in advance. The
repairs were affected and the house was ready for occupation
by the second week in December 1944. Meanwhile, however,
the appellants had decided to sell the estate on which the house
was situated and so informed the respondent by the letter dated
11 December 1944.The respondent obtained a key of the house,
and on 11 December 1944, entered into possession of the
premises. On 20 December 1944, the appellants forcibly ejected
the respondent and his effects. In an action for damages for
trespass the respondent alleged that he was the tenant of the
house and as such protected by the Rent Restrictions Acts. The
appellants pleaded, inter alia, that there was no note or
memorandum in reference to the alleged tenancy as required
by the Law of Property Act, 1925, s. 40. The County court
judge notwithstanding the absence of any memorandum in writing
to satisfy the section and the inapplicability of the doctrine of
part performance found in favor of the respondent. The grounds
upon which the judge so found were that the appellants had to
justify the eviction of the respondent; that in their attempt at
Justification, they were frustrated by proof of the agreement;
and that the respondent, being in possession, relied on the
agreement not as a cause of action, but to defeat the plea that
the trespass was justified:
Then it was held although the respondent’s possession was
sufficient to support an action against a wrongdoer, it was not
sufficient as against the lawful owner; the respondent was bound
to rely on the agreement for a tenancy not merely to defeat the
plea that the trespass was justified, but as an essential part of
his cause of action and there being no sufficient memorandum
in writing: the Law of Property Act, s. 40, was answer to his
claim.
The learned authors i.e., ‘Cheshire and Fifoot in their
textbook on the law of contract put it as follows:
A conditional assent to an offer does not

constitute acceptance. A man who though
content with the general details of a proposed
transaction, feels that he requires expert guidance
before committing himself to a binding obligation,
often makes his acceptance conditional on the
advice of some third party, such as a solicitor.
The result is that neither party is subject to an
obligation. A common example of this is everyday
life occurrence in the case of a purchase or a

lease of land. Here it is almost an invariable
practice to incorporate the terms, after they have
been settled in a signed document which contains
some such incantation as ‘subject to contract,’
or ‘subject to a formal contract to be drawn up
by our solicitors.’ Unless there is cogent
evidence of a contrary intention, the courts
construe these words so as to postpone the
incidence of liability until a formal document has
been drafted and signed. As regards
enforceability the document is not worth the
paper it is written on. It is merely an agreement
to enter into a contract- a transaction which is a
legal nullity – it may be disregarded by either
party with impunity. In the case of Barnca v.
Cobarro, the court was presented with a delicate
question of construction.
A vendor agreed to sell the lease and goodwill
of a mushroom farm on the terms of a written
document which was declared to be ‘a provisional
agreement until a fully legalised agreement,
drawn up by a solicitor and embodying all the
conditions herewith stated, is signed.’
The court of appeal held that, by using the
word ‘provisional’ the parties had intended the
document to be an agreement binding from the
outset though subsequently to be replaced by a
more formal contract. Had they used the word
‘tentative’ and not ‘provisional’ or had they
repeated the hallowed formula ‘subject to
contract.’ They would have indicated their
intention not to be bound until the completion of
a later document. It is therefore in each case a
question of construction whether or not the
parties intended to undertake immediate
obligations, or whether they were suspending all
liability until the conclusion of formalities. Have
they in other words made the operation of their
contract conditional upon the execution of a
further document, in which case these obligations
will be suspended, or have they made an
immediate binding agreement, though one which
is later to be merged into a more contract?
Upon the particular phrase ‘subject to
contract’ the pressure of litigation has stamped
a precise significance. In other cases it is often
difficult to decide if the language used justified
the inference of a complete and final agreement.
The task of the court is to extract the intention
of the parties both from the terms of their
correspondence and from the circumstances
which surround and follow it and the question of
interpretation may thus be stated.
In relying on this authority Mr Mundashi has argued that the

learned trial commissioner did not err when he ruled that there
was no binding contract of sale as the earlier agreement
postponed the incidence of a binding contract by stating that the
agreement was ‘subject to contract.’ It was common cause
that the appellant was offered the house in question and the
appellant accepted the offer which was however made subject
to contract. The appellant made two payments of deposit but
before the contract of sale was drawn up for signature by both
parties, the respondent informed the appellant that the price had
changed. The appellant refused to accept the new price and
she insisted on the old price. The parties never exchanged the
necessary contract and the contract was never signed. Mr.
Mabutwe has argued that the facts reveal a unilateral contract
which meant that once the appellant had signed, then -the
authority existed which bound both parties.
We have considered the authorities and arguments of both
parties. The facts clearly show that the contract was drawn up
but the vendors declined to sign on the ground that allegedly the
property had been offered at a price which was less than the
cost of construction, and they were unwilling to sell the property
at such a price. It is common cause that the deposit was paid to
the vendors and such deposit was referable to one particular
transaction, There is no doubt that there was no written contract
between the two parties, but there remains only an oral contract
which could only be enforced through part performance. The
decision in Steadman’s case shows, that there is no general rule
that payment of money cannot be part performance but this
payment must be referable to one transaction. The purchaser in
this case said the deposit was in respect of the house which had
been offered to her. The deposit therefore referred only to one
particular transaction i.e. the purchase of the house in Avondale.
The payment of the deposit in this case was clearly referable
only to one transaction; such payment therefore amounted to
part performance of the contract and is an exception to the rule
requiring a memorandum in writing. There is consequently an
equitable right for specific performance. But in this particular
case there was a mistake made by the vendor and of offering
initial1y a lower price. We consider that it would be unfair to
bind the vendor to the price to which it did not intend to agree.
It is a fact that the house prices have been affected by
considerable inflation and we are informed that the house has
been sold to another purchaser for the sum in excess of one
million kwacha.
In view of our finding in this case we feel that it would be
fair for the parties to share equally the profit resulting from the
sale. The appeal is allowed and we order that the respondent
shall make a refund to the appellant the deposit of K25,000 plus
interest at the ruling bank rate together with half the difference
between the cost of construction of the house and the price
realised on its sale. In default of agreement between the parties
we direct that the sum payable shall be assessed by the registrar
of the high court. There will be no order as to costs of this
appeal and in the court below. Costs of any assessment
proceedings will be at the discretion of the registrar.
(e) Doctrine of Part Performance - Equitable remedy subject

to equitable principles - Specific Performance of Oral
Contract for sale of land
Konidaris v. Dandiker, Supreme Court Appeal No. 157 of 1999
[The facts the case appear from the Judgment of the Supreme Court
delivered by NGULUBE, CJ, as he then was]
For convenience, we will refer to the respondent as the plaintiff

and the appellant as the defendant, which is what they were in
the action. In consolidated actions, the plaintiff sued the defendant
together with the Lusaka City Council, the Commissioner of
Lands and the Attorney General in order to recover possession
of Plot Number 3/Z/A/737 Vubu Road, Lusaka and to regain
and reinstate his title deeds to the plot. The plaintiff owned this
property and had constructed at one end of it a dwelling where
he lived. In October 1990, the defendant approached the Plaintiff
and asked him to use part of the plot at the other end to dump
and sell building Sand. The plaintiff agreed and it was agreed
the defendant would be paying K40,000 as monthly rent. Other
facts which were not agreed were resolved and found by the
learned trial judge after hearing the witnesses at the trial. The
learned judge in accepting what the defendant had alleged and
rejecting the position taken by the plaintiff found as a fact that
the plaintiff later agreed to subdivide and sell the portion of the
plot occupied by the defendant as soon as the defendant had put
up some unexhausted improvements as was required those days
when vacant land could not be sold as such.. The learned trial
Judge found as a fact that there was an oral agreement to this
effect. He also found as a fact that the plaintiff must have seen
and noticed the developments taking place when the defendant
put up a shop building and some offices, contrary to his claim
that the structures went up behind his back when he was
temporarily out of the country. It was in evidence that contrary
to the oral agreement the plaintiff offered to reimburse the
defendant the costs incurred in developing that part of the land
so that thereafter the defendant would be paying rent. This
course of action was apparently not acceptable to the defendant
who had developed the land after applying for and obtaining
planning permission based, on the oral agreement that he would
be sold the land once it was subdivided. The defendant decided
to move officialdom, including the Commissioner of Lands,
behind the plaintiffs back. He got the land subdivided and obtained
title deeds to his portion after persuading the Commissioner of
Lands to re-enter the plot.
The learned trial Judge heard the evidence and even visited
the site. He made a number of important findings some of which
formed the basis of the appeal. To begin with, the learned trial
judge found that the defendant was more credible than the
plaintiff, hence the findings that the plaintiff was aware of the
construction of buildings by the defendant and he must have
agreed to sell part of the plot with structures to be erected by
the defendant, contrary to the plaintiff’s assertions to the contrary.
However the learned trial judge also held that the oral agreement
for the sale of the land was unenforceable in terms of S4 of the
Statute of Frauds of 1677, for absence of any memorandum in

writing signed by the party to be charged with the transaction.
He also found that the plaintiff had not parted with possession
of the land in contravention of the Land (Conversion of Titles)
Act or at all so as to justify the re-entry by the Commissioner of
Lands so that such re-entry was contrary to the laid down
statutory procedures and was in any case without the requisite
notice to the plaintiff.
With regard to the defendant’s obtaining of a title deed after
the plaintiff had, for whatever reason, repented of the oral
agreement to sell, the learned trial judge rejected the submission
that the transactions behind the plaintiff’s back were a fraud on
him but nonetheless considered the actions to have amounted to
sharp practice. No one has tried to criticize the learned trial
Judge’s finding that the Commissioner of Lands acted outside
the law in attempting to expropriate the plaintiffs land without
compensation, contrary to the relevant Article of the Constitution;
or when he also found that the State could not use the Lands
Acquisition Act (whose procedures they did not even follow) to
take land from one person to benefit another individual. We
agree that in so holding, the judge was on firm ground. In the
event, the learned trial Judge nullified the re-entry, cancelled the
subdivision and the certificate of title issued to the defendant
and declared the plaintiff to be still the lawful owner of the
whole of the plot. However, because the defendant had erected
the buildings under an oral agreement now held to be
unenforceable, equity would intervene and accordingly the
plaintiff must pay compensation to the defendant for the buildings
erected by the latter. The learned judge ordered that the
defendant would pay mesne profits and damages to the plaintiff
in respect of loss of use and other losses and that there be a set
off of the amounts, due to each other. The damages for the
plaintiff as well as the compensation for the defendant in respect
of the value of the buildings were ordered to be assessed by the
Deputy Registrar…
Mr Dudhia led in the argument of the second ground of appeal
which related to the learned trial judge’s refusal to grant the
defendant’s cross prayer for specific performance of the oral
agreement, for the sale of the land, relying on the fairly elderly
Statute of Frauds. It was submitted that the learned trial judge
should not have relied so rigidly on the requirement of a written
memorandum as required by the statute but that instead he should
have had recourse to the two equitable doctrines of part
performance and promissory estoppel. It was argued that
developing a property is an act of part performance, citing the
case of BROUGHTON v. SNOOK46 where, acting on an oral
agreement of sale, a plaintiff incurred much expenditure on
alterations and decorations to a country inn which in the
circumstances of the case were held to- be referable only to the
verbal contract. It was held in that case that the expenditure in
those circumstances was an act which was sufficient to defeat
the plea of the statute. Mr Dudhia submitted that, having found
as a fact that there was an oral agreement that after the
defendant developed the property it would be subdivided and
sold to him, he should have been granted specific performance
under the equitable doctrine of part performance after he had
gone ahead to develop the land with the plaintiff’s agreement. It
was argued that the order for specific performance could have
directed that the price be agreed or in default it be ascertained
by valuation, taking into account the provisions by the appellant.
It was common cause that bare land could not be sold those
days.
Mr Dudhia relied on a second doctrine, namely promissory
estoppel which was essentially an extension of the old estoppel
in pais. He pointed out that while in the past such estoppel applied
only to representations of fact and not of intention, equity had
since expanded the doctrine to cover representations of intention
or promises. He cites, among others, the case of CENTRAL
LONDON PROPERTY TRUST LTD v. HIGH TREES HOUSE
LTD. 47 Mr Mudenda countered all the submissions and
arguments concerning specific performance by pointing out that
this was an equitable remedy which should not be available to
anyone who comes with dirty hands. It was submitted that he
who practices sharp practice, as found by the learned trial judge,
does not come with clean hands. In reply, Mr Banda submitted
that the defendant did not engage in sharp practice as such so
that his hands were not dirty.
The learned trial Judge had all these issues before him and
he made a finding of fact that there had been sharp practice.
The defendant was not a passive beneficiary but must have
instigated all the moves to subdivide and obtain title deeds. We
do not see how the learned trial judge can be faulted in his
determination. In any event, we agree with Mr Mudenda that it
46
[1938] 1 All ER 411.
47
[1947] KB 130.
is not only fraud which makes hands dirty; even sharp practice
does. Again, in invoking his own equitable jurisdiction, the learned
trial judge ordered that the plaintiff pay compensation to the
defendant for the improvements and developments carried out.
We are unable to say that this did not adequately do equity to
the defendant and meet the justice of the case. In so saying
equally reject the plaintiff’s submission that no compensation
should be paid, as raised by the cross appeal.
9.5 Summary of Chapter Nine
A contract for sale or other disposition of land or an interest in

land is made in the same way as any other contract i.e., either
orally or in writing. Although an oral contract for sale of land or
disposition of any interest in land may be valid it will be
unenforceable by either party unless either the statutory
requirements of section 4 of the Statute of Frauds, 1677 or the
requirements of equity as to part performance have been
satisfied. Section 4 of the Statute of Frauds requires that for a
contract for the sale or other disposition of land or an interest in
land to be enforceable by action the agreement upon which
such action shall be brought or some memorandum or note
thereof shall be in writing and signed by the party to be charged
therewith or some other person thereunto by him lawfully
authorised. The constituent parts of the section 4 have been
discussed above under section 9.1. After the passing of the
Statute of Frauds, 1677 it was realised that the Statute was
being used for unconscionable dealings, which itself was designed
to remedy. The Statute became an engine of Fraud. A party to
a verbal or oral contract for sale of land or disposition of any
interest in land could disclaim liability (in spite of performance
of reciprocal terms by the other party) for his own performance
on the ground that the contract had not been reduced into writing.
Common law offered no remedy in such a case or situation.
Equity however, intervened to deal with such unconscionable
situations:
Where, therefore, a party to a contract

unenforceable under the Statute of Frauds stood
by while the other party acted to his detriment in
performance of his own contractual obligations, the
first party would be precluded by the Court of
Chancery from claiming exoneration, on the ground
that the contract was unenforceable, from
performance of his reciprocal obligations; and the
court would, if required, decree specific
performance of the contract. Equity would not, as
it was put, allow the Statute of Frauds ‘to be used
as an engine of fraud’. This became known as
the doctrine of part performance—the ‘part’
performance being that of the party who had, to
the knowledge of the other party, acted to his
detriment in carrying out irremediably his own
obligations (or some significant part of them) under
the otherwise unenforceable contract.
(Per, Lord Simon of Glaisdale in Steadman v. Steadman.)

Chapter Ten
THE DOCTRINE IN WALSH v. LONSDALE
10.0 Introduction – Need For A Deed To Transfer An Interest

In Land at Law
At law, in order to transfer or create a legal estate, certain

formalities had to be complied with, for example, for a valid
lease to be created, the Statute of Frauds 1677 required that
any contract for transfer or disposition of land or any interest in
land had to be in writing. The Real Property Act of 1845 made
a deed an essential for transfer of any interest in land. Without
a deed no legal interest in land would be created or transferred.
At the time when Walsh and Lonsdale1 was decided, the
position of the law i.e., the Real Property Act of 1845 was that
a lease for a term of three years or exceeding three years was
void unless it was made by deed.2
10.1 Intervention of Equity
The Real Property Act of 1845 provided that leases which

formerly had to be in writing under the Statute of Frauds, now
had to be by deed or would be void at law. Equity was not strict
and in accordance with its maxim or principle that ‘equity looks
on as done that which ought to be done’ the parties were treated
as if the formalities were complied with. It has been observed
that the principle or doctrine attributed in Walsh v. Lonsdale,
had already been established in 1958 in Parker v. Taswell3 that
equity would treat an imperfect lease (a lease in writing) as a
contract to grant a lease and then order specific performance
of the contract.4
In Parker v. Taswell, the parties had entered into a tenancy
agreement which was not sealed i.e., not under deed as required
by the law. Section 3 of the Real Property Act, 1845, provided
that a lease of any tenement or hereditament would be void at
law unless made by deed. The Lord Chancellor, Lord
1
[1882] 21 CHD 9.
2
See Tottenham Hotspur Football and Athletic Co. v. Princegrove Publishers Ltd [1974] 1 All ER 17.
3
[1858] Ch ERV. Vol. 44 at p. 1108.
4
Riddall, J.G., Introduction to Land Law (4th ed.). London: Butterworths (1988), p. 251.
Chelmsford, in the course of delivering his judgment observed

and commented that:
The legislature appears to have been very

conscious and guarded in language for it uses
the expression ‘shall be void at law’ – that is as
lease. If the legislature had intended to deprive
such a document of all efficacies, it would have
said that the instrument should be ‘void to all
intents and purposes.’ There are no such words
in the Act. I think it would be too strong to say
that because it is void at law as a lease it cannot
be used as an agreement enforceable in equity,
the intention of the parties having been that there
should be a lease, and the aid of equity being
only invoked to carry that intention into effect.5
In this case equity intervened and treated an imperfect lease

as a contract to grant the lease and then ordered specific
performance of the contract.
In Walsh v. Lonsdale, the defendant landlord agreed in
writing to grant by deed the lease of a weaving mill to the plaintiff
tenant for a period of seven years. One of the terms was that
the tenant should on demand pay a year’s rent in advance. No
deed was executed as required by law, but the plaintiff was let
into possession of the mill and for a year and half paid rent
quarterly, although not in advance. The defendant then demanded
a year’s rent in advance, and on the plaintiff’s refusal to pay
distrained for it. In an action for damages for wrongful distress
and specific performance of the agreement, the plaintiff’s
argument was that the remedy of distress was legal and not
equitable and that as at law he was only a yearly tenant with no
obligation to pay rent in advance, so the defendant could not
distrain for the rent. The case turned on whether Lonsdale had,
or had not, been entitled to claim rent in advance. If he had, his
distress had been lawful; if he had not, it had been wrongful. At
common law, since Walsh paid and Lonsdale accepted one
year’s rent, this made Walsh a yearly tenant. As a yearly tenant
Walsh at common law was under no obligation to pay rent in
advance or until the end of the second year. At common law the
distress was therefore wrong. It was held that since the distress
5
THE DOCTRINE IN WALSH v. LONSDALE 325
would have been legal had the lease agreed upon been granted
by deed, and since equity treated the parties as if this had been
done the distress was lawful in equity.
The Court held that the position in equity prevailed over that
at common law. In making or arriving at this judgment the court
was applying section 25 of the Judicature Act, 1873, which
provided that ‘in matters ….in which there is any conflict, or
variance between the rules of equity and the rules of Common
law with reference to the same matter, the rules of equity
shall prevail’. In this case no deed was executed by the parties
as required by the law but using the principle of equity that
‘equity looks on as done that which ought to be done’ the
parties were treated as if this was done and if under the terms
of the lease a year’s rent would have been payable in advance
on demand; a distress for that was lawful.
Real Property have observed that the effect of the decision in
the Walsh v. Lonsdale is to render an enforceable agreement
for a lease very nearly as good as a legal lease and further that
the same applies to an imperfect lease which is enforceable as
an agreement for a lease.6
10.2 Effect of Walsh v. Lonsdale in Equity – Willingness of

the Court to Grant Specific Performance
The effect of Walsh v. Lonsdale in equity depends upon the

willingness of the court to grant the discretionary remedy of
specific performance.7 In Warmington and another v. Miller,8
Stamp, LJ observed and commented thus:
It is not and never has been the contention of

the plaintiffs that they are lessees at law under
the agreement; and counsel for the defendant
submitted, as I think correctly, that the Walsh
v. Lonsdale situation, where the intended
lessee is treated as having the same rights as if
a lease had in fact been granted to him, only
applies if the lessee is entitled to specific
performance (see the judgment of Sir George
6
Ibid., at p. 337.
7
Hina Furnishing Limited v. Mwaiseni Properties Limited (1983) ZR 40 – The case is excerpted under the
section dealing with case law.
8
[1973] 2 All ER at 377.
Jessel, MR in Walsh v. Lonsdale (at 14). The

equitable interests which the intended lessee
has under an agreement for a lease do not exist
in vacuo but arise because the lessee has an
equitable right to specific performance of the
agreement. In such a situation, that which is
agreed to be and ought to be done is treated as
having been done and carrying with it in equity
the attendant rights. But the intended lessee’s
equitable rights do not in general arise when
that which is agreed to be done would not be
ordered to be done.
10.3 Case Law
(a) Executory agreement for a lease is as good as a lease

where the court is prepared to grant specific performance
WALSH v. LONSDALE [1882] 21 CH D 14.
The Defendant on the 29th of May, 1879, agreed to grant and

the Plaintiff to accept a lease of a mill for seven years at the
rent of 30s. a year for — each loom run, the Plaintiff not to run
less than 540 looms. The lease to contain such stipulations as
were inserted in a certain lease of the 1st of May, which was a
lease at a fixed rent made payable in advance, and contained a
stipulation that there should at all times be payable in advance
on demand one whole year’s rent in addition to the proportion, if
any, of the yearly rent due and unpaid for the period previous to
such demand. The Plaintiff was let into possession and paid
rent quarterly, not in advance, down to the 1st of January, 1882,
inclusive, having run in 1881 560 looms. In March, 1882, the
Defendant demanded payment of £1005 14s. (840 as one whole
year’s rent for 560 looms at 30s., and £165 14s. as the
proportionate part of the rent from the 1st of January last), and
put in a distress. The Plaintiff thereupon commenced his action
for damages for illegal distress, for an injunction, and for specific
performance, and moved for an injunction. Fry, J, granted the
injunction on the terms of the Plaintiff paying the £1005 14s into
Court. The Plaintiff appealed.
Held, that since the Judicature Acts the rule no longer holds
that a person occupying under an executory agreement for a
lease is only made tenant from year to year at law by the payment
of rent, but that he is to be treated in every Court as holding on
the terms of the agreement.
Held, therefore, that the Plaintiff holding under the agreement
was subject to the same right of distress as if a lease had been
granted, and that if under the terms of the lease a year’s rent
would have been payable in advance on demand a distress for
that was lawful.
JESSEL, MR: It is not necessary on the present occasion to decide

finally what the rights of the parties are. If the Court sees that
there is a fair question to be decided it will take security so that
the party who ultimately succeeds may be in the right position.
The question is one of some nicety. There is an agreement for a
lease under which possession has been given. Now since the
Judicature Act the possession is held under the agreement. There
are not two estates as there were formerly, one estate at
Common Law by reason of the payment of the rent from an
estate in equity under the agreement. There is only one Court,
and the equity rules prevail in it. The tenant holds under an
agreement for a lease. He holds therefore under the same
terms in equity as if a lease had been granted, it being a case in
which both parties admit that relief is capable of being given by
specific performance. That being so he cannot complain of the
exercise by the landlord of the same rights as the landlord would
have had if a lease had been granted. On the other hand, he is
protected in the same way as if a lease had been granted; he
cannot be turned out by six months’ notice as a tenant from
year to year. He has a right to say, “I have a lease in equity, and
you can only re-enter if I have committed such a breach of
covenant as would if a lease had been granted have entitled you
to re-enter according to the terms of a proper proviso for re-
entry.” That being so, it appears to me that being a lessee in
equity he cannot complain of the exercise of the right of distress
merely because the actual parchment has not been signed and
sealed.
In Tottenham Hotspur Football & Athletic Co. Ltd v. Princegrove

Publishers Ltd,9 Lawson, J observed and commented thus in relation
to the doctrine in Walsh:
9
[1974] 1 All ER 17.
The second submission of the plaintiffs derives

basically from the proposition in equity, that equity
looks on that as done which ought to have been
done. Counsel for the plaintiffs cited passages
in Snell’s Principles of Equity in support of his
second submission. Importantly, bearing on the
second submission, is the well-known case of
Walsh v. Lonsdale. The report of that case does
not reveal a vital matter because—and I agree
with counsel for the plaintiffs—those who were
engaged in that case knew what they were
talking about, and accepted certain premises
which do not appear in the report. But the
position at the date when Walsh v. Lonsdale
was decided was that a lease for a term of seven
years was void unless it was made by deed. This
is a provision which is found in s III of the Act
entitled ‘An Act to amend the Law of Real
Property’, but usually known as the Real
Property Act 1845e. The importance of that point
in Walsh v. Lonsdale was that the tenant, who
was in fact the plaintiff, suing for damages for
illegal distress, was a person who had entered
into an agreement for a lease of seven years
with the defendant—the landlord. He had, in
fact, entered pursuant to that agreement, but no
such lease had in fact been executed. Therefore,
he was merely a tenant in equity. The right of
distress for rent only accrues when the tenant
enjoys a legal estate. The plaintiff therefore
contended that the distress was illegal, since he
was only a tenant in equity, and had no legal
estate, the right of distress not being available
for that reason. But the court held—I am reciting
from the headnote that since the Judicature Acts
the rule no longer holds that a person occupying
under an executory agreement for a lease is only
made tenant from year to year at law by the
payment of rent, but that he is to be treated in
every Court as holding on the terms of the
agreement:—Held, therefore, that the Plaintiff
holding under the agreement was subject to the
same right of distress as if a lease had been
granted, and that if under the terms of the lease
a year’s rent would have been payable in advance
on demand a distress for that was lawful.
I find that authority, and the operation of this
maxim decisive in the present case. Putting it in
a nutshell, as a result of Walsh v. Lonsdale, and
the principle that Walsh v. Lonsdale expounds,
the position is that, if a person goes in and
occupies property as tenant under an agreement,
it is taken as if an instrument giving effect to the
new tenancy on the agreed terms has been
executed.10
(b) A contract for a lease is as good as a lease where the

court is willing to grant the discretionary remedy of specific
performance – A court will not grant the remedy in favour
of a tenant whose tenancy agreement is subject to a
condition precedent which has not been performed.
In Hina Furnishing Lusaka Ltd v. Mwaiseni Properties Ltd,11 the

plaintiff sought an injunction to restrain the defendant from hindrance,
molestation and interruption of the plaintiff’s peaceful and quiet enjoyment
of its occupancy of the demised premises during the term of tenancy or
until further notice. The premises were demised under a contract to
lease which was neither executed, nor carried the requisite Presidential
consent. The action arose out of the defendant’s effective re-entry and
possession of the premises upon the plaintiff falling into several months
rent arrears. It was contended for the defendant that the plaintiff could
not succeed since they were seeking discretionary and equitable remedy
available only where one comes to court with clean hands. The case is
excerpted below.
KAKAD, J ... since 15 August 1975, under the provisions of s.13

of the Land (Conversion of Titles) Act, 1975, hereinafter
referred to as Act 20 of 1975, every person is mandatorily
restricted from sub-dividing and alienation of land, which includes
sub-letting, without prior consent, in writing, of the President.
10
Ibid., at pp. 24-25.
11
(1983) ZR 40.
Under the provision of s.13 (2) of Act 20 of 1975, the

President in granting his consent may impose such terms and
conditions as he may think fit. Such terms and conditions shall
be binding on all persons and shall not be questioned in any
court or tribunal.
In this case neither party has exhibited the written consent
by the President consenting the leasing of the premises as agreed
between the parties. The defendant has exhibited an unexecuted
lease. It appears to me that the lease remains unexecuted
because the written consent as required under s.13 (1) of Act
20 of 1975 has so far not been granted. Under the provisions of
s. 13 (1) of Act 20 of 1975, the defendant was strictly restricted
from sub-letting the premises to the plaintiff without prior written
consent of the President. I therefore consider that in the absence
of the written consent of the President, there was no legal estate
or interest on the premises conveyed to the plaintiff. In the result
the plaintiff, in my judgment, does not seem to be a protected
tenant under the provisions of the Act, Cap 440.
The terms of the lease i.e. parties, property, length of term,
rent and commencement date of terms, appears to have been
agreed upon between the defendant and the plaintiff. Thereupon
the plaintiff was allowed to occupy the premises. Equally the
plaintiff on his part paid rent for some months (see William
Jacks and Company (Zambia) Limited (1967) ZR 110). It
therefore appears that in all probability there was an agreement
for lease, though I would not make any conclusive findings to
that effect.
In Woodfall, Landlord and Tenant Vol. 1 (27th Edition) at p. 132,

contract for lease or an agreement - for lease is defined as under:
A contract for a lease is an agreement enforceable by

law whereby one party agrees to grant and another to
take lease. The expression ‘contract for lease’ and
‘Agreement for lease’ are usually inter-changeable, but
‘Contract for lease’ is preferred as being more definite,
agreement frequently meaning one of many stipulations
in a contract. A contract for a lease, is to be distinguished
because lease is actually a conveyance of an estate in
land, whereas contract for a lease is merely an
agreement that such a, conveyance shall be entered
into at a future date.
In para. 381 of the mentioned Woodfall Vol. 1, at p.162, it is stated:
If any material point, such as the amount of premium or

rent, is by the contract left to be determined by third
persons, e.g., arbitrators or surveyors, and that has not
been done before action, the court will not decree specific
performance, having no power to compel such third
persons to perform their duty; it therefore treats the
contract as too imperfect to be specifically enforced.
In the same Volume at p.177, in para. 420, it is stated:
Since the Judicature Act, 1873, a tenant who enters

into possession under a contract for a lease of which
specific performance would be granted is not a tenant
from year to year only, but holds under the same term
in equity as if the lease had been actually granted. The
landlord can therefore exercise all rights, legal as well
an equitable, which he would have had if a lease had
been granted, and likewise the tenant is protected in the
same way as if lease had been drawn up and executed.
If under the terms of the lease agreed upon, year’s
rent would have been payable in advance on demand, a
distress for that rent may lawfully be levied upon a tenant
holding under the agreement. This principle was laid
down in the leading case of Walsh v. Lonsdale, and
the judgment of Jessel, MR. in that leading case has
frequently been approved. The principle has no
application, however, to a case where specific
performance would not be granted, for example where
agreement for a lease was subject to a condition
precedent which has not been fulfilled and has not been
waived by a lessor.
In the Law of Real Property by Megarry and Wade (4th Ed.), at p. 626,
differences between legal and equitable leases have been explained as
under:
The effect of Walsh v. Lonsdale was often summed

up in the words ‘a contract for a lease is as good as a
lease’. For many purposes this is true, but as
generalisation it is misleading, for it ignores the vital
differences between legal and equitable interests. The

difference between a contract and lease is in reality
substantial: a contract falls short of lease in the following
respects:
(a) Dependence upon specific performance. The
effect of Walsh v. Lonsdale in equity depends
upon the willingness of the court to grant the
discretionary remedy of specific performance.
If for any reason an agreement for a lease one
which the court cannot or will not grant specific
performance the position under it is very
different from that under legal lease; the parties
can have nothing more than a right to sue for
damages under the agreement, though yearly
or other periodic tenancy may arise in the usual
way. For example, there can normally be no
specific performance in favour of a tenant
whose tenancy agreement is subject to a
condition precedent (e.g. to repair) which he
has not performed, or who is already in breach
of one of the terms of the agreement, or whose
claim is to an underlease which can be granted
to him only in breach of a covenant against sub-
letting in the head-lease. He who comes to
equity must with clean hands, and he who seeks
equity must do equity. In such leases the tenant
must stand or fall by his rights (if any) at law.
As I have said, it appears that there was an agreement for lease
between the plaintiff and the defendant upon the agreed terms.
One of the terms of the agreement obviously was that the plaintiff
had covenanted to pay K7,500.00 as rent per month. The plaintiff
it is evident had paid the agreed rent for some months. Equally
he has conceded that he has been in arrears for the months of
December, 1982, January, 1983 and February, 1983 i.e., the month
before he was evicted. The law is that there can normally be no
specific performance in favour of a tenant whose tenancy is
subject to a condition precedent or who is already in breach of
one of the terms of the agreement. In this case the plaintiff in
failing to pay the rent for the months of December, 1982, January,
1983 and February, 1983, had apparently breached one of the
terms of the agreement for lease. Secondly, in my view, the
agreement for lease, even though the rental was agreed between
the parties, was subject to a condition precedent because under
s.13 (3)(b) the rent agreed between the parties had to be
consented in writing by the President. It is clear that under s.13
(3)(b) of Act 20 of 1975, the President may allow the agreed
rent or may fix a rent which he deems it, proper and that decision
could not be questioned in any Court or tribunal. In the premises
I have my doubts as to whether there could be specific
performance in favour of the plaintiff.
Further, it is also my view that until the written consent by
the President was obtained, as provided under s.13 (1) of Act
20 of 1975, notwithstanding the validity of the Agreement for
lease between the plaintiff and the defendant, the defendant as
the landlord, had no power to grant occupation of the premises
to the plaintiff. Consequently the plaintiff, in my view, had and
has no right to legally occupy the premises. I have, therefore,
my reservations as to the plaintiff’s rights, legal or equitable to
quiet and peaceful enjoyment of the premises as claimed by the
plaintiff....
In Sundi v. Ravalia,12 the High Court of Northern Rhodesia

(Woodman. J) was faced with a situation (somewhat similar to
Walsh v. Lonsdale), where a lease for a duration of 4 years
was not registered as required under Section 4 of the Lands and
Deeds Registry Ordinance (now Section 4 of the Lands and
Deeds Registry Act).13 Section 6 of the Ordinance (now section
6) of the Lands and Deeds Registry Act provides that if a
document is not registered within the prescribed period, the same
‘shall be null and void’. His Lordship held, inter alia, that the
meaning of the phrase ‘null and void’ under section 6 is of ‘no
effect whatsoever’ and that in such a situation a lease cannot
pass any interest and cannot be specifically enforced. His
Lordship refused to follow an earlier decision of Robinson, J (in
the High Court of Northern Rhodesia in Ward v. Casale and
Burney14 ), who interpreted the expression ‘null and void’ in
the same way as the Courts in England have interpreted the
expression ‘void at law in the Real Property Act of 1845. In
that case Robinson, J, held that there was no difference, in his
opinion, between ‘null and void’ and ‘void at law’. Robinson, J
then went on to order specific performance of the option to
12
[LRNR] (1949-54) Vol. p. 345
13
Chapter 185 of the Laws of Zambia. The Lands and Deeds Registry Act is covered under chapter 17 of this
book.
14
[1949-54] Vol. p. 759.
purchase contained under the unregistered lease. According to

his Lordship the agreement could still take effect in equity. The
two cases are excerpted below.
(c) Ward v. Casale and Burney LRNR [1949 – 54 ] Vol. p. 759
In Ward v. Casale and Burney, Robinson, J, commented and observed

thus:
… Section 4 (1) of Cap. 68 [now: Cap. 84] reads

as follows: ‘Every document purporting to grant,
convey or transfer land or any interest in land or to
be a lease or agreement for lease . . . for a longer
term than one year . . must be registered.’ Section
6 says: ‘Any document required to be
registered…and not registered shall be null and
void’.
The agreement, therefore, is useless to the
plaintiff both as a lease and also as an option to
purchase, which is an interest in land, see Hailsham
Halsbury, Volume 20, p. 65 when the authorities
are collected. Mr. Williams for the plaintiff relies
on the equitable jurisdiction which this Court
undoubtedly possesses and submits that the plaintiff
can succeed in spite of the structures of Cap. 68
[Editor-now 84].
The legal position appears to be that inasmuch
as the plaintiff entered into possession and paid
rent, a tenancy from year to year was created upon
the terms and conditions of the agreement, Walsh
v. Lonsdale (1882) 21 Ch. 9. Also it is clear that
in this case Cap, 68 ‘null and Void’, has to be dealt
with, and not the statute of Frauds ‘no action shall
be brought’. But by the Real Property Act, l845 (8
and 9 Vict C. 106) leases which formerly had to
be in writing, i.e., under the Statute of Frauds, now
had to be by deed or shall be void at law”. English
cases, therefore, decided since the passing of that
Act, such as the above, are a useful guide to the
law in Northern Rhodesia. There is no difference
in my opinion between ‘null and void’ and ‘void at
law’. There is no doubt that the Courts in England
have gone a very long way, in the exercise of their
equitable jurisdiction, to give effect to the original
intentions of the parties and not to allow one party,
repenting of his bargain, to shelter behind the strict
letter of the law. For instance, take the case of,
Martin v. Smith 9 Ex 50, decided in 1874. The
plaintiff agreed to let a house to the defendant for
seven years and the defendant, in the last year of
the Term, was to paint it. The agreement was void
as a lease because it was not by deed (8 and 9
Vict.C.106). It was argued that a covenant, to
paint in the “seventh year was inconsistent with a
tenancy from year to year, yet nevertheless the
Court found no difficulty in enforcing it on the
ground that although the agreement was void at
law as a lease yet the plaintiff could have enforced
the lease by specific performance had the
defendant at all time attempted to eject him. See
Parker v. Taswell (1858) 2, L.J. (Ch.,) 1812 and
44 ER 1106. It is argued for the plaintiff that those
two cases are sufficient authority for him to succeed
in his present claim; The Courts enforced the
original bargain although the agreement in which
the terms were set out was void at law.
But, superimposed on that, is the doctrine of
part performance by which is meant that the Court,
exercising its equitable jurisdiction, will see that a
bargain, although unenforceable or void at law, is
wholly enforced if part of that unenforceable
bargain has been carried out by, the party seeking
to enforce it. In the case of Brough v. Nettleton
(1921) 2 Ch. 25. A. verbally agreed with B. to
grant him, a lease of a certain house for 2 ½ years
from 1st October, 1917, at a specified rent and
that should have the option , to be exercised in
writing of , of purchasing the house at any time
during the tenancy for £500 . On the faith of this
parol agreement, B. was only a yearly tenant at
the specified rent; alternatively he relied on the
statute of Frauds. It was held that the possession
by B. was an act of part performance which
enabled him to give evidence of all the terms of
the parol agreement for the tenancy, and entitled

him to specific performance of that agreement
including the option to purchase.
On the part of the case, I am satisfied that the
plaintiff is entitled to specific performance of the
option to purchase unless the authority cited by
Mr Lloyd Jones for the defendant is insuperable…
(d) O.H. SUNDI v. A.N. RAVALIA NRLR [1949-54] Vol. P.

345
[The facts of the case appear from the Judgment of Mr Justice

Woodman, J]
This is an appeal by O.H. Sundi against a decision of the

Subordinate Court (Class I) Fort Jameson giving judgment for
the respondent A.N. Ravalia with costs in an action brought by
the appellant against the respondent in which the appellant
claimed £120 from the respondent as rent due and unpaid for
the stand on Plot No. 48.
The action was commenced on the 17th March 1948, by
writ of summons. No statement of claim was filed by the plaintiff
apart from the particulars of claim set out in the writ of summons
which were as follows: ‘Rent for stand on Plot No. 48 should be
in advance for 1948 and not yet paid; No statement of defence
was filed by the defendant. As the Subordinate Court did not
order the plaintiff to file a written statement of claim nor order
the defendant to file a written statement of defence the procedure
followed was in accordance with Order XVIII rule I of the
Subordinate Courts (Civil Jurisdiction) Rules (Cap. 4).
The plaintiff relied on a tenancy agreement dated the 24th
January 1947, according to the terms of which the appellant
agreed to let and the respondent agreed to take on rent all that
Plot 48 situate in Fort Jameson Township along with the buildings
thereon erected for a period of four years commencing from
the 1st February 1947, at the yearly rent of £120 payable yearly
in advance.
This tenancy agreement was not registered as required by
section 4 (I) of the Lands and Deeds Registry Ordinance (Cap.
84) (hereinafter called ‘the Ordinance’). .
The Subordinate Court found as a fact that the respondent
did not enter into possession until 15th May 1947. The respondent
paid to the appellant £120 by cheque dated the 8th May 1947.
This cheque was given to the appellant on the 8th May 1947.
On the face of the cheque were written the words ‘House rent
for one year’. It was at no time suggested that these words
were written after the respondent signed the cheque.
At the trial counsel for the plaintiff contended that although
the tenancy agreement was not registered the defendant was to
blame for that and was consequently estopped from alleging
that the agreement was ‘null and void’ despite the provision of
section 6 of the Ordinance which reads ‘Any document required
to be registered as aforesaid and not registered shall be null and
void’ He further contended that even if the defendant was not
estopped, the effect of section 6 of the Ordinance was that the
tenancy agreement, though void in law as a lease, was valid in
equity as an agreement for a lease and could be specifically
enforced. And further that; even if the agreement was void in
law and equity, a tenancy from year to year arose by presumption
of law, as the defendant had entered upon the premises and
paid an annual rent. He submitted that, the entry was made by
the tenant under the terms of the agreement and that therefore
the defendant became a yearly tenant on the terms of the
agreement so far as they applied to a yearly tenancy. In any of
these alternative the second year’s rent becomes due on the 1st
February 1948 and the subordinate court should therefore have
given judgment for the plaintiff. The contentions of counsel for
the defendant at the trial, so far as material to this appeal, were
that as the lease is not registered it was void and of no effect
and was inadmissible in evidence. That as the defendant actually
entered into possession on the 15th of May, 1947 and had paid
one year rent of £120 he could not be called upon to pay any
more rent until the 15th of May 1948, and hence the action which
was commenced on the 17th of March, 1948 was premature.
The subordinate Court held that the effect of non registration of
the agreement was that the agreement was ‘unenforceable in
this action because ipso facto, it is incapable of proof.’ The
court then went on to hold that it was nonetheless the duty of
the court to determine in equity what the real intentions of the
parties were and to give effect to those intentions. The real
intentions of the parties as determined by the courting equity
appear to be stated in the judgment as follows: ‘the parties
entered into an agreement about the store on 24 January 1947.
the terms of the agreement appear to be that plaintiff should
lease the store to the defendant for the period of four years as
from the 1st February 1947, at an annual rent of £120 payable

in advance, or by quarterly instalments of £30 in the form of
bills of exchange: there is also to be inferred a collateral
agreement whereby the plaintiff agreed that the general dealer’s
licence in respect of Plot 48 should be in the name of the
defendant ; otherwise the proposition would be obviously no
value to the defendant.’
The court however, found that these intentions of the parties
were not infact carried out. It held “that the plaintiff had no
intention of fulfilling his part of the bargain until rent was first
paid and this was well understood by the defendant. It was not
until the 15th May that the money was forthcoming and the
bargain was completed. On that one would have expected the
court to hold that the tenancy created by the completion of the
bargain was a for a years tenancy. That was the intention of
the parties as determined by the court in equity and the court
intended to give effect to that intention.
What the court actually did hold was that ‘by prescription of
law a tenancy from year to year was created as from the 15th
May 1947, at an annual rental of £120 payable in advance the
plaintiff’s claim that the rent was due on the 1st February 1948
for £120 therefore fails and there will be judgement for the
defendant with costs.’ It is that decision against which this
appeal has been brought. There are seven grounds of appeal,
some of which raise only questions of law and others attack
findings of fact. I shall first deal with the second ground of
appeal which is that the trial court erred in failing to hold that the
respondent was estopped from setting up the plea that the tenancy
agreement was null and void.
The contention of the appellant is that the non-registration of
the tenancy agreement was entirely due to the default of the
respondent, that the appellant had done all he could do to obtain
registration by requesting the respondent to have the agreement
registered and that consequently the respondent ought not to be
allowed to take advantage of his own default: But there was
nothing to prevent the appellant from registering the agreement
himself. Regulation 3 of the Deeds Registry regulations shows
that any person interested under the document is entitled to apply
for registration. It is true that Regulation 6 requires the original
and in certain cases one and in other cases two copies to be
handed to the Registrar, As the appellant was only in possession
of the counterpart of the lease he contends that he was not in a
position to comply with Regulation 6.
It may well be that for the purpose both the lease and
counterpart are originals, but even if this is not so, the Registrar
under section 4 (2) (b) of the Ordinance has power to order the
lessee to produce the original lease. A refusal by the lessee to
obey such an order could not defeat the landlord’s right to have
the lease registered in these circumstances I can see no reason
why the respondent should be estopped from setting up the plea
that the tenancy agreement was null and void, It might have
been a different matter if the respondent had induced the
appellant to refrain from registering by falsely informing the
appellant that the document had been registered by the
respondent.
The second ground of appeal therefore fails. The questions
raised by the other grounds of appeal really amount to this: what
on the correct interpretation of the ordinance were consequences
of non registration were circumstances of this case?
Section 4 (1) of the ordinance, so far as relevant to this appeal,
reads as follows:
4. (1) Every document purporting to grant convey

or transfer land or interest in land or to be a lease
or agreement for lease or permit of occupation of
land for a longer term than one year or to create
any charge upon land whether by way of mortgage
or otherwise or which evidences the satisfaction
of any mortgage or charge and all bills of sale of
personal property whereof the grantor remains in
apparent possession … must be registered within
the times hereinafter specified in the Registry or
in a district registry if eligible for registration in
such district Registry. Any document required or
permitted to be registered affecting land persons
property or rights in any district for which a district
Registry has been appointed may be registered
either in such district registry.
Section 3 ( I) of the ordinance defines ‘the Registry’ as meaning

‘the Registry of Deeds in Lusaka’. The trial Court held that the
tenancy agreement had not been registered as required by section
4 of the Ordinance, and this finding of fact has not been attacked
by either party to the appeal. Section 5 specifies the times
within which registration must be effected.
Section 6 of the Ordinance is as follows:
Any document required to be registered as

aforesaid and not registered within the time
specified in the last preceding section shall be null
and void:
Provided, however, that the Court may

extend the time within which such document
must be registered or authorise its
registration after the expiration of such
period on such terms as to costs and
otherwise as it shall think fit if satisfied that
the failure to register was unavoidable or
that there are any special circumstances
which afford ground for giving relief from
the results of such failure and that no
injustice will be caused by allowing
registration; Provided also that the probate
of a will required to be registered as
specified in the last preceding section shall
be null and void so far only as such will
affects land or any interest in land.
Section 7 (1) of the Ordinance reads:
7. (1) All documents required to be registered as

aforesaid shall have priority according to date of
registration; notice of a prior unregistered document
required to be registered as aforesaid shall be
disregarded in the absence of actual fraud.
The agreement dated the 24th January, 1947, on which the

appellant relies was produced to the trial Court and marked
‘O.H.S. No. 2’.
From its terms it is clear that it is a lease and not a mere

agreement for a lease for a period of four years and as such it
required to be registered under section 4 of the Ordinance. It is
to be noted that even if it were a mere agreement for a lease it
would still require to be registered under section 4. The lease in
question, not having been registered within the time prescribed
or indeed at all, is by virtue of section 6 ‘null and void’ whatever
that may mean. Apart altogether from authority, I should have
thought that the Ordinance means exactly what it says, not ‘void
in law but valid in equity’, nor’ void as a lease but valid as an
agreement for a lease enforceable in equity by way of specific
performance, but simply ‘null and void’. And if the lease is null
and void then it can have no effect whatever, it cannot pass any
interest and it cannot be specifically enforced. Is there any good
reason for refusing to adopt this plain and natural interpretation
of the Ordinance? Robinson, J, in the case of Ward v. Casale
and Burney, decided in the High Court of Northern Rhodesia
(civil case No. 26 of 1941), appears to have held that there
was, in his view the expression ‘null and void’ in the Ordinance
ought to be interpreted in the same way as the Courts in England
have interpreted the expression ‘void at law’ in the Real Property
Act of 1845. He says ‘there is no difference in my opinion
between ‘null and void’ and ‘void at law’.
The Real Property Act of 1845 provided that leases which
formerly had to be in writing under the Statute of Frauds now
had to be by deed or ‘shall be void at law’. Now the leading
ease on the interpretation of that provision of the Real Property
Act of 1845 is Parker v. Taswell.
In his judgment in that case Lord .Chelmsford, LC said:
The Legislature appears to have been very cautious

and guarded in language for it uses the expression
‘shall be void at law that as a lease... If the
Legislature had intended to deprive such a document
of all efficacy, to carry that intention into effect.’
So far therefore from the presence of the words ‘at
law’ in the expression ‘void at law’ making just no
difference at all, their presence was the ratio
decidendi of Lord Chelmsford’s decision.
There is a further difficulty in the way of holding that under the

Ordinance exhibit O.H.S. 2 is void as a lease but valid as an
agreement for a lease because under section 4 an agreement
for a lease for more than one year is just as void for non-
registration as a lease is.
I must therefore respectfully disagree with the opinion of
Robinson, J, that there is no difference between ‘null and void’
and ‘void at law’ and with his opinion that the expression ‘null
and void’ in section 6 of the Ordinance should be interpreted in
the same way as the English Courts have interpreted the
expression ‘void at law’ in the Real Property Act, 1845.
Mr Conway has relied on the case of Le Neve v. Le Neve,

which was a decision under the Middlesex Registry Act, 1708,
and other similar cases under other Acts in which it was held
that although the Act in terms made certain documents void if
they were not registered yet a prior unregistered document would
not be void against a person whose document was registered
subsequently to the date of the unregistered document, if the
person claiming under the subsequent registered document had
notice of the prior unregistered document.
Now. apart from the fact that the question of the effect of
notice of a prior unregistered document does not arise in this
case at all, the case of Le Neve v. Le Neve and other similar
cases can be of no assistance in the interpretation of the
Ordinance, even by way of analogy, because the principle applied
in those decisions has been expressly excluded by section 7 of
the Ordinance, which provides that ‘notice of a prior unregistered
document required to be registered as aforesaid shall be
disregarded in the absence of actual fraud’.
That being so it is not necessary to deal with any of those
decisions in detail, but I may point out that the reason for the
decision in the case of Le Neve v. Le Neve was that the preamble
of the Act stated that whereas indisposed persons had it in their
power to commit and frequently did commit frauds by prior and
secret conveyances and then followed the words of enactment.
In view of that preamble the Court held that the intention of the
Act was only to protect subsequent purchasers against prior
and secret conveyances and not against prior unregistered
conveyances of which they had notice
The Ordinance contains such preamb1e moreover, the case
of Le Neve v. Le Neve is 200 years old and in more modern
cases it has been held that it would be dangerous to engraft an
equitable exception, James, LJ, in Edwards v. Edwards, quoted
with approval Building Co. in re Tacon v. The company.
Mr Conway for the appellant, contended that as the expression
used in the Ordinance is ‘null and void’ and not “null and void to
all intents and purposes” the language of the Ordinance was not
strong enough to exclude what James, LJ, called ‘equitable
exceptions.’
The question as to whether the words ‘to all intents and
purposes’ add any strength to the expression ‘null and void’ is
one to which the English courts have not always given the same
answer. There is a long line of old cases to the effect that the
words ‘to all intents and purposes’ are little more than an expletive
(see Stroud’s Judicial Dictionary, 2nd Edition, pp. 2194—
6). But in modern times the courts have been less consistent.
(see Stroud’s Judicial Dictionary, 2nd Edition, p. 2196.)
The position now seems to be that it is a question of
ascertaining the intention of the Legislature in the particular
enactment under consideration.
Reading sections 4, 6 and 7 of the Ordinance together it
seems to me quite clear that the intention of the Legislature was
to deprive of all efficacy documents which are required to be
registered under the Ordinance and which have not been so
registered. The only exception is in the case of fraud.
The legislator has met the case of hardship arising from non-
registration by providing in section 4 a procedure whereby the
Court may authorise registration out of time in a proper case. It
seems to me to be as plain as a pikestaff that the legislator
intended to provide his own equities and did not intend that any
others should be read into the Ordinance.
There was no fraud in this case. Failure by the respondent to
register was not fraud. The appellant knew or must be taken to
have known the law as well as the respondent. As I have pointed
out there was nothing to prevent the appellant obtaining
registration himself and he could even if necessary have applied
to the Court for permission to register out of time. It is not fraud
for a man to insist upon his legal rights.
Another argument of Mr Conway was that the Ordinance
only makes the document void and it does not say that the
transaction is void. The transaction therefore is valid and can be
enforced.
Such an interpretation appears to me to be excluded by
section 7 of the Ordinance: To say that one document should or
should not have priority over another would be meaningless unless
that priority was intended to affect the rights of the parties to
the documents. Mr Conway’s final argument on the construction
of the Ordinance is that to hold that the transaction is void would
lead to absurd results. He puts the following hypothetical case.
‘Supposing I agreed with Mr Smith in writing that I will sell him
a large quantity of machinery at the price of £10,000 and I would
allow him to store this in a small corner of a yard which belonged
to me on terms which amounted to a demise for 2 years at a
rental of, say, £5 per annum. Mr Smith very kindly pays the
whole of the purchase money, but when he asks for delivery of
the machinery some four months later the agreement between

us is null and void because the document containing the
agreement has created an interest in land and is null and void
for want of registration- you can neither have your machinery
nor the land.’ And then Mr Conway goes on to suggest that Mr
Smith would be unable to recover his £10,000 if even one bolt
had been delivered to Mr Smith by Mr Conway because there
had not been a total failure of consideration.
If this were the result of holding that the transaction was null
and void that result would be absurd. But fortunately for Mr
Smith no such result would follow. Either the agreement is
separable or it is not. If it is separable no difficulty arises. If it is
not separable then the transaction being null and void no property
passed and the £10,000 still belongs to Mr Smith and the bolt to
Mr Conway. Mr Smith is entitled to the return of his £10,000
and Mr Conway to the return of his bolt or its value. I therefore
hold that by virtue of sections 4 and 6 of the Ordinance the
lease dated the 24th January 1947, is null and void for want of
registration and that that lease can have no effect whatever, it
can pass no title or interest either in law or equity and that the
transaction evidenced by the document of the 24th January 1947,
is equally null and void and cannot be enforced nor have any
effect.
That being so, what is the position?
The trial Court found as a fact that the respondent did not
enter into possession until the 15th May 1947. There was
evidence upon which the trial Court could so find and I see no
reason to disturb that finding of fact. The respondent also paid
to the appellant £120 as one year’s rent in advance on the 8th
May 1947. By presumption of law a tenancy from year to year
was created as from the 15th May 1947, by the respondents
entry into possession and payment of an annual rent. As the
sum of £120 was paid as one year’s rent in advance, the
respondent must be taken to have agreed that the rent was to
be £120 per annum and was to be paid yearly in advance.
Mr Conway contends that that payment of £120 must be
taken to have been paid as rent for the period from the 1st
February 1947, to 31st January 1948, and that all the terms of
the lease of the 24th January 1947, must be imported into the
tenancy agreement implied by law, so far as those terms are
consistent with a tenancy from year to year. The tenancy must
therefore be taken to have commenced on the 1st February
1947, and in consequence the second year’s rent was due on
the 1st February, 1948. I am unable to agree with those
contentions. The lease having been deprived by the Legislature
of all efficacy cannot be called in aid to show that the tenancy
commenced on the 1st February 1947, nor for the purpose of
importing any other of its terms into the tenancy implied by law.
The presumption is that the tenancy commenced on the date of
entry into possession, and that presumption can only be rebutted
by proof that there was a fresh agreement between the parties
that the lease should commence at some other date. What
evidence is there of such fresh agreement? I can find none.
That the respondent on 8th May 1948, gave appellant a cheque
on the face of which was written ‘House rent for one year’ is
not enough. Mr Conway contends that you must link that up
with the lease of the 24th January 1947. That cannot be done
because the lease has no effect than as if it had never been
entered into. The burden of proof of such a fresh agreement
lies on the appellant and he has failed to discharge it.
Although I cannot agree with all the reasoning of the learned
magistrate who tried the case, he arrived in the end at the right
conclusion and properly gave judgment for the respondent with
costs.
For the reasons I have stated this appeal is dismissed with
costs against the appellant both in this court and in the court
below.
Of the two decisions (Sundi v. Ravalia, Ward v. Casale and

Burney) the decision of Mr Justice Woodman in Sundi v. Ravalia
appears to be correct in the context of sections 4 and 6 of the
Lands and Deeds Registry Act as well as taking into account
the reasoning as well as the decision in Walsh v. Lonsdale.
The decision in Sundi v. Ravalia was followed by the
Supreme Court of Zambia in Krige and Another v. Christian
Council of Zambia,15, where it was held, inter alia, that the
engrossment of the lease for execution and the accompanying
letter constituted a valid memorandum in writing of an agreement
for a lease which should have been registered under the Lands
and Deeds Registry Ordinance and that the effect of non
registration was that the agreement was void for all purposes
whatsoever.
15
[1975] ZR 152.
10.4 Summary of Chapter Ten
The doctrine in Walsh v. Lonsdale has to be understood in the

context of facts surrounding the case itself and the law in issue
i.e., the provisions of section 3 of the Real Property Act of
1845, section 25 of the Judicature Act, as well as the principle
of equity that ‘equity looks on as done, that which ought to
be done’
The Ward v. Casale and Burney case and Sundi v. Ravalia
decided by the High Court of Northern Rhodesia show the
intricacies associated with the application of the doctrine. The
Hina Furnishing v. Mwaiseni Stores Ltd case underscores
the principle that the effect of Walsh v. Lonsdale in equity
depends upon the willingness of the Court to grant the
discretionary remedy of specific performance.
347
PART TWO
INTRODUCTION
This part of the book deals with what I may call the ‘Zambian Land
Law.’ Chapter eleven, Historical Background of the Land Tenure
System in Zambia, gives an account of the historical background of the
land tenure system in Zambia from the time of imposition of colonial rule
in 1889, up to the First Republic (1964 - 72).
Chapter twelve, Land Reforms in The Second Republic. The Land
(Conversion of Titles) Act, considers and examines the land reforms
undertaken by the United National Independence Party Government in
1975 during the Second Republic (1973 - 1991). The chapter also
considers the 1985 Amendments to the Land (Conversion of Titles) Act
of 1975.
Chapter thirteen, Land Reforms in the Third Republic, examines
and considers the land reforms initiated and implemented by the
Movement for Multiparty Democracy Government in the Third Republic.
The chapter also considers and examines the proposed constitutional
provisions relating to land under the Mungomba Draft Constitution.
Chapter fourteen, Compulsory Acquisition of Property in Zambia:
The Power of Eminent Domain, considers the law of eminent domain
in Zambia. The law relating to Compulsory Acquisition of Property in
Zambia is mainly contained under article 16 the Republican Constitution
and the Land Acquisition Act of 1970.
Chapters fifteen and sixteen, Protection of Tenants of Residential
Premises in Zambia; The Rent Act and Protection of Tenants of
Business Premises in Zambia; The Landlord and Tenant (Business
Premises) Act, respectively examine and consider the legal regime for
the protection of tenants of residential and commercial premises in
Zambia. At Common law, the relationship of landlord and tenant was
solely a private matter governed by contract. The said two statutes have
in a general way interfered with the traditional freedom of contract by
restricting the ability of landlords to do as they may want in relation to
the tenancy agreements with their tenants.
Chapter seventeen, Registration of Interests in Land: The Lands
and Deeds Registry Act, examines and considers the law relating to
registration of interest in land. This law is contained in the Lands and
Deeds Registry Act.
Chapter eighteen, Statutory Control of Land Use in Zambia,
examines the various laws which control or limit the use and enjoyment
of land in Zambia. At Common law, land owners were at liberty to use
and develop their land in any way they wished provided they did not
cause a nuisance or trespass on the neighbour’s property. A number of
statutes in Zambia have watered down this traditional freedom at Common

law to use one’s land as he wishes. These Statutes are considered in
this chapter.
Chapter nineteen, The Informal Land Tenure System in Zambia,
examines the Housing (Statutory Improvements Areas) Act which is
the legislation that was put in place, in 1974, to regulate the informal land
tenure system in Zambia.
Chapter twenty, The African Concept of Land Ownership,
considers the nature of title and interests or rights in land under customary
tenure or holding. The chapter also examines and considers the role
played by traditional authorities or rulers under African customary tenure.
Chapter twenty-one, the last chapter of the book, is on Land
Administration and Alienation in Zambia. The chapter considers the
land administration and alienation system in Zambia with some emphasis
on institutional arrangements and procedure for alienation of land.
351
Chapter Eleven
HISTORICAL BACKGROUND OF THE LAND

TENURE SYSTEM IN ZAMBIA
11.0 Introduction
This chapter gives a brief historical account of the development

of the land tenure system in Zambia from the time of the British
South Africa Company (BSA Co.) rule, up to the First Republic
(1964-72). 1 Before the advent of colonialism in Northern
Rhodesia, as Zambia was then known, all land in the territory
was administered in accordance with African Customary law.
The customary land tenure system regulated the manner and
ways in which the indigenous peoples could acquire, exercise
and enjoy rights in land.
In 1889, North Western Rhodesia and North Eastern
Rhodesia protectorates were created under the provisions of
the 1889 North Western and North Eastern Rhodesia Orders in
Council. On 29th October, 1889 the BSA Co. was incorporated
under a Royal Charter.2 Under the Charter the Company was,
inter alia, entrusted with the administration of the two territories.
The Company was authorised and empowered to make treaties
with local peoples north of the Zambezi River and to make land
grants. The Company was also empowered under the Charter,
to carry out mining activities and to make concessions for mining
and other rights. The Company’s right to rule the territory was
derived from two sources: viz; the Royal Charter of
Incorporation of the BSA Co. and the two Orders in Council
enacted for the two territories namely; the 1889 North Western
Rhodesia Order in Council and North Eastern Rhodesia Order
in Council.
11.1 The Lewanika Concessions – North Western Rhodesia
During the period 1900 – 1909, the BSA Co. obtained, inter-
alia, land concessions from the Litunga Lubosi Lewanika, King
1
For a detailed account of the development of the Land Tenure System of Zambia from 1924 to 1964; see
Mvunga, M.P., ‘The Colonial Foundations of Zambia’s Land Tenure System.’ Lusaka: NECZAM Zambia Ltd,
(1980).
2
Royal Charter of incorporation of the British South Africa Company, 29 October 1889.
of the Lozi people.3 The extent of these land concessions was

claimed to have included the present day Southern Province.
These concessions generally granted various rights to the
Company including the right to search and prospect for minerals
in the whole territory of Barotse, including all subject and
dependant territories.
The last concessions granted to the Company in 1909, granted
land rights throughout Lewanika’s territory except in Barotseland
proper itself. The BSA Co. proceeded to alienate and administer
the land on the basis of these concessions. The Company
promised Lewanika British protection from outside invasions,
payment of mineral royalties, guns, etc.4
11.2 The North Eastern Rhodesia Concessions
North Eastern Rhodesia was also acquired by the BSA Co.

through concessions entered between it, through its emissaries,
and the local chiefs. In general, the chiefs accepted the British
flag, placed themselves under the protection of the Queen and
granted the Company the sole right to search and prospect for
minerals.5
11.3 British South Africa Company’s Claims to Ownership of

Land
The 1889 Orders in Council [North Western and North Eastern

Rhodesia Order in Council] and the 1911 Northern Rhodesia
Order in Council contained no provision vesting land in the
Company although the Company claimed ownership of the land
in the two territories. The Company asserted a right to the
ownership of land and the minerals throughout Northern
Rhodesia on the basis of the concessions entered into between
it through its emissaries and the African chiefs. The claims to
ownership of land and minerals by virtue of the concessions or
treaties entered between local chiefs and the Company have
been questioned and challenged.6
3
Ruler from 1886 - 1916.
4
Ndulo, M., ‘Mining Rights in Zambia’. Lusaka: Kenneth Kaunda Foundation (1987), p. 25
5
6
Ibid., see Chapter 3 entitled ‘Challenges to the British South Africa Company Claims.’ Pp. 37-76; see also
Mvunga, M.P., supra note 1 at pp. 36 - 37. The challenges are mainly on the grounds of lack of capacity on
the part of the chiefs or kings to do what they did and lack of consent in that they did not understand what
they signed for.
HISTORICAL BACKGROUND OF THE LAND TENURE SYSTEM IN ZAMBIA 353
The other claim to land by the Company, was said to be by
virtue of declaration of protectorate status.
The view that declaration of protectorate status meant
ownership of land was translated into local law in the Nyasaland
Protectorate by Judge Nunan, the Chief Judicial officer, in the
cases of Cox v. African Lakes Corporation (ALC) and Pettit
v. African Lakes Corporation, otherwise known as the Kombe
cases.7 The central issue in both cases was the validity of an
agreement dated 2nd August, 1900 by which one chief, William,
granted a monopoly for the collection of strophantus seeds
(Kombe), in his territory to the defendant, the ALC Judge Nunan
held that the agreement was invalid for want of consideration.
He also held that the agreement was ultra-vires chief William.
He was no longer ‘the landlord of the land over which he
was Chief, the legal ownership having passed with Sovereign
rights to the Sovereign of Great Britain…’ by treaties signed
by his predecessor. Judge Nunan held that the chief could no
longer dispose of land, easements or profits a’ prendre without
the consent of his Majesty’s Commissioner. According to Nunan
the chiefs in the Nyasaland protectorate had practically lost their
influence to the Commissioner upon the establishment of Colonial
rule.
The view that protectorate status meant title to land was
rejected by the Privy Council8 in Re Southern Rhodesia.9 The
issue at stake was to establish who among the Crown, the BSA
Co. and the natives, was the owner of the vacant and unalienated
lands of Southern Rhodesia. It was held that a proclamation of
annexation was not essential to constitute the Crown owner of
the territory as completely as any sovereign can be owner of
lands public Juris, and further that a manifestation of the
Crown’s intention to that effect by Orders in Council dealing
with the lands and their administration was sufficient for the
purpose. In other words, the Crown could only establish
ownership of the land by an express indication to create Crown
land by an Order in Council. The case is excerpted below.
7
16 and 23 July, 1901, unreported.
8
The Privy Council was the highest apellate Court for the Protectorates and colonies under the British Empire.
9
[1919] AC 211.
Re SOUTHERN RHODESIA [1919] AC 211
LORD SUMNER [at page 229] …on 17 April 1914, the Legislative
Council of Southern Rhodesia passed a resolution as follows:
(1) That the ownership of the unalienated land

in Southern Rhodesia is not vested in, and
has never been acquired by, the British South
Africa Company as their commercial or
private property, and that such powers of
taking possession of, dealing with or
disposing of land in Southern Rhodesia as
have been or are possessed by the British
South Africa Company have been created
by virtue of authority conferred by Her
Majesty the Queen in Council and her
successors upon the Company, as the
governing body charged for the time being
by Her Majesty in Council and her
successors with the general administration
of affairs within the said territory and
responsible for the maintenance of law,
order, and good government therein.
(2) That if by the exercise of the said powers
and the taking possession of, dealing with
and disposing of the said land or by any other
means, the British South Africa Company
have acquired an ownership of the said land,
such ownership is so vested in them as an
administrative and public asset only, and the
Company in their capacity other than a
Government and Administration have no
dominion or estate in or title to the said lands
or to any moneys or revenues derived
therefrom.
(3) That on the said Company ceasing to be the
Government of the said territory, and ceasing
to exercise the administration of affairs
therein, all such lands as may be unalienated
at such time shall be and remain the property
of the Government of the said territory
which shall take the place of the said
Company, and the possession and
administration of such land shall pass to such
Government as public domain.
These contentions were disputed by the British South Africa

Company, and by Order in Council, dated 16 July 1914, His
Majesty was graciously pleased to refer to this Board for hearing
and consideration of the question ‘whether the contentions put
forward in the said resolution of 17 April 1914, are well founded
?’ ‘…by the disinterested liberality of persons in this country’
their Lordships had the advantage of hearing the case for the
natives who were themselves incapable of urging, and perhaps
unconscious of possessing, any case at all. Undoubtedly this
inquiry has thereby been rendered more complete. Although
negative in form, since their case in answer to the questions
mentioned in the order of reference was primarily that the
unalienated lands were the property neither of the Crown nor
of the Company, in substance their case was that they were the
owners of the unalienated lands long before either the Company
or the Crown became concerned with them and from time
immemorial, that their title could not be divested without
legislation, which had never been passed, or their own consent,
which had never been given, and that the unalienated lands
belonged to them still. Hence, if the Company had any title at
all, which was denied, it was only the title of a trustee, the
beneficial interest remaining in the natives and the legal title and
right to possession reverting to them whenever the Company
ceases to govern the country.
According to the argument, the natives before 1893 were
owners of the whole of these vast regions in such a sense that,
without their permission or that of their King and trustee, no
traveller, still less a settler, could so much as enter without
committing a trespass. If so, the maintenance of their rights
was fatally inconsistent with white settlement of the country,
and yet white settlement was the object of the whole forward
movement, pioneered by the Company and controlled by the
Crown, and that object was successfully accomplished, with
the result that the aboriginal system gave place to another
prescribed by the Order in Council.
This fact makes further inquiry into the nature of the native
rights unnecessary. If they were not in the nature of private
rights, they were at the disposal of the Crown when Lobengula
fled and his dominions were conquered; if they were, any actual
disposition of them by the Crown upon a conquest, whether
immediately in 1894 or four years later, would suffice to
extinguish them as manifesting an intention expressly to exercise
the right to do so. The Matabeleland Order in Council of 1894
and the Southern Rhodesia Order in Council of 1898 provided
for native reserves, within which the tribal life of the natives
might be continued under protection and control, and to the rest
of the country the Company’s officers and white men were
admitted independently of any consent of the natives. The
Company’s alienations by grant are unquestionably valid, yet
the natives have no share in them. The ownership of the reserves
was, at least administratively, vested in the Company under the
Southern Rhodesian Native Regulations promulgated by the High
Commissioner in 1898, and with the consent of the Crown other
dispositions of those reserves can be made by the Company
from time to time. By the will of the Crown and in exercise of
its rights, the old state of things, whatever its exact nature, as it
was before 1893, has passed away and another and, as their
Lordships do not doubt, a better has been established in lieu of
it. Whoever now owns the unalienated lands, the natives do not.
Like the natives, the Company desired to find a title which
would ante-date the conquest of Lobengula in 1893 and would
confer such prior rights in property, or rights equivalent to
property, in the unalienated lands as would be classed among
the private rights which a conqueror is deemed to respect, unless
by appropriate action or legislation he expressly affects them.
For ten years after 1893 the Lippert Concession is little heard
of, but it was a grant from Lobengula while he was still sovereign
of the country, and it referred to the lands generally. Accordingly
it formed a part, and not an unimportant part, of the Company’s
case.
The Lippert Concession was not one of those public acts by
which one independent sovereign, however humble, enters into
political relations with the agents of another. Instruments of that
character have been common enough in the history of the British
Empire. They derive their juridical character from their
recognition and adoption by the Crown, and in interpreting them
it must be borne in mind that they are State documents. The
Lippert Concession is not of this character. Like the Rudd
concession, it received the approval of the High Commissioner
on behalf of the Crown, but it is essentially a private contract
though entered into by the concessionaire with the paramount
chief, and, like other legal documents, its effect must depend
upon the construction of its terms according to ordinary legal
rules. It is, indeed, of importance to the Company’s case largely
because it confers private rights, and is not in any sense a mere
public act or act of State. Private concessions of large extent
and of ambitious character, when obtained by white financiers
from untutored aborigines, are generally and justly objects of
close scrutiny, but their Lordships are relieved from the duty of
inquiring into the circumstances under which this grant was made
by the fact that competent officials reported to the High
Commissioner, after making full inquiry under his direction, that
the concession had been properly obtained and that its terms
correctly expressed Lobengula’s intentions and exactly reflected
his understanding of the matter………..their Lordships think
that the real question is, what does the Lippert Concession say.
Thus read, it is plain that the concession did not give the
concessionaire the right to use the land or to take the usufruct.
It did not make any land his, nor did it enable him to make it
his own. What land he appropriated to others was to be
appropriated in Lobengula’s name. There were no words of
conveyance; no estate or interest in land was vested in Herr
Lippert. The concession was at most a personal contract. If it
bound Lobengula’s successors, they were such successors only
as came to his throne under his title, and not successors to his
sovereignty who came to it by right of the sword, if Lobengula
broke the contract or revoked the concession, Herr Lippert’s
claim was a personal one, and was not supported by any right in
or to the land. The Company, indeed, never acted under the
concession. Its grants were not made in Lobengula’s name, nor
did it pay the annual douceur, upon which the rights under it
were conditional, The consequences of the construction which
the Company puts on the document would indeed be extreme.
It would follow that Herr Lippert was, or could become at
pleasure, owner of the entire kingdom; for nothing is reserved in
favour of the inhabitants; from the kraals of the King’s wives to
his father’s grave or the scene of assembly of his indunas and
his pitso. Thence-forward the entire tribe were sojourners on
sufferance where they had ranged in arms, dependent on the
good nature of this stranger from Johannesburg even for gardens
in which to grow their mealies and pastures on which to graze
their cattle.
The Lippert Concession may have some value as helping to

explain how and why the Crown came to confer the
administration of Southern Rhodesia upon the Company, but as
a title deed to the unalienated lands, it is valueless. Accordingly
it becomes unnecessary to consider either the powers of
Lobengula to dispose of tribal lands or the effect of the approval
and recognition of the concession by the Crown and of the
occupation which it is suggested that the Company enjoyed under
it. The Crown recognised the concession for what it might be
worth on its true interpretation, and the Company’s occupation,
whatever it rested on, did not rest on the Lippert Concession.
Recognition could give no title where none existed already. It is
true that sundry speeches to shareholders, wise and otherwise,
were quoted in which the Company claimed to own the whole
country, though the Lippert Concession was but little relied on
and but rarely mentioned; but, though these were sent to the
Colonial Office, it is not shown that they were or ought to have
been read there, or that, if they were read, the Crown was
bound to take any notice of these domestic matters.
In default of the Lippert Concession, the Company places
great reliance on occupation long standing and undisturbed. It is
true that the period required for a title by prescription under
Roman-Dutch law, which has been applied to Southern Rhodesia,
has not yet elapsed, and that the Company’s possession has not
been held adversely to the Crown. Laying aside the language of
directors’ speeches and the form of the Company’s accounts
because of their ambiguity, no one can say that its possession is
not at least as referable to the administrative position which it
held under the Crown as to an enjoyment independent of the
Crown, or that it is inconsistent with the recognition of the
Crown’s overriding title. The fact of occupation is, however,
relied on in various ways. It commenced, at any rate in
Mashonaland, before 1893. The Company does not (nor could it
do so) assert a conquest for its own benefit, but it says that,
enjoying certain rights under its charter, it occupied extensive
tracts of country without objection from Lobengula during his
reign, and then, after his flight and on a still larger scale, it took
to itself the disposal of a masterless land, now left vacant for
the first comer who should prove strong enough to hold what he
took. Thence forward, with the recognition of the Crown, or at
least without its dissent, the Company claims that it did openly
all that an owner could do, and enjoyed every advantage that
ownership could have given, conveying land in its own name to
grantees of its own choice, fixing the price and applying the
purchase-money as it saw fit, and consistently doing what only
an owner ought to do, under the very eyes of the Crown, and in
a manner which cannot be reconciled with any title outstanding
in the Crown. Thus, if the Crown did not give the land into the
Company’s hands, yet it was content to leave in the Company’s
hands all that it found there. The word estoppel ‘was not, indeed,
used’, but the Company did not scruple to suggest that, if after
all its expenditure in Southern Rhodesia, incurred in the belief
that it was undisputed owner of the unalienated lands, the Crown
succeeds in asserting a competing title, then it has not been
fairly dealt with.
The questions in this reference refer to property and not to
mere occupation. This must never be lost sight of. The charter
simply gave capacity to own and to grant land, but in itself it
granted none. It used, indeed, the expression ‘the Company’s
territories,’ but this referred to the area within which those
capacities might be exercised, and did not amount to an
anticipatory grant by the Crown of land which in 1889 was not
the Crown’s to bestow. The fact of occupation and especially
the circumstances under which it was taken and enjoyed are
significant and helpful in estimating what the rights of the Crown
were and how far, if at all, the Crown conferred rights over the
land on the Company; but in itself and by itself occupation is not
title.
The Crown does not claim to have annexed Matabeleland
and Mashonaland. No Proclamation of annexation has ever been
issued. Accordingly the Company contends that for want of it
these regions have never belonged to the Crown, but that it has
deliberately disinterested itself in regard to their ownership, and
the conclusion suggested is that, if no one has now a better title
than the Company, the inchoate title consisting of occupation is
for present purposes property enough.
No doubt a Proclamation annexing a conquered territory is a
well-understood mode in which a conquering Power announces
its will urbi et orbi. It has all the advantages (and the
disadvantages) of publicity and precision. But it is only
declaratory of a state of fact. In itself it is no more indispensable
than is a declaration of war at the commencement of hostilities.
As between State and State special authority may attach to this
formal manner of announcing the exercise of sovereign rights,
but the present question does not arise between State and State.
It is one between sovereign and subject. The Crown has not
assented to any legislative act by which the declaration of its
will has been restricted to one definite form or confined within
particular limits of ceremonial or occasion……..one thing is most
notable. Nowhere is there any express grant of the unalienated
lands by the Crown to the Company. The hypothesis that the
Crown settled the lands, by conveying to the Company in trust
to sell them and apply the proceeds to the necessities of
administration, need not be considered. Not only is there no
declaration of any such trust, no beneficiary named and no trust
indicated, but there is no conveyance at all.
Their Lordships will humbly report to His Majesty that they
affirm the first paragraph of the resolution passed on 17 April
1914 (1), and deny the third, and that as to the second they say
that, so long as British South Africa Company continues to
administer Southern Rhodesia under the Crown, it is entitled to
dispose of the unalienated lands in due course of administration,
and to apply the moneys or revenues derived therefrom in duly
reimbursing all proper outlays on administrative account in the
current or in past years, and if its administration of Southern
Rhodesia should he determined by the Crown, then the right to
look to the Crown to secure to it (either out of the proceeds of
further sales of the lands by whomsoever made, or, if the Crown
should grant away these lands or proceeds to others, from public
funds) the due reimbursement of any outstanding balance of
aggregated advances made by it for necessary and proper
expenditure upon the administration of Southern Rhodesia. This,
however, and the other rights hereinbefore mentioned do not
vest in it dominium or estate in or title to the said unalienated
lands...
In Sobhuza v. Miller and others,10 a challenge to an Order in

Council which expropriated the natives land in Swaziland was
unsuccessful. In this case unlike in re: Southern Rhodesia,
there was an Order in Council which expropriated to the Crown
land of the indigenous peoples of Swaziland. It was held,
following the decision in re: Southern Rhodesia case, that the
Order in Council was effective as there was an express indication
by or through the Order in Council by the Crown to create Crown
land and that an extension of the British Jurisdiction in a British
protectorate by Orders in Council was an exercise of power by
10
[1926] 2 AC 516.
an act of state unchallenged in any British court. The case is
excerpted below.
SOBHUZA II v. MILLER AND OTHERS [1926] 2 AC 518
The appellant, who was paramount chief of Swaziland, presented a

petition to the Special Court of Swaziland, on behalf of himself and the
chiefs and natives of Swaziland; he claimed an order ejecting the
respondents from certain land belonging to that country, a declaration of
rights, and an injunction. The petition called in question the validity of
certain Orders in Council, and proclamations and grants of land made
thereunder. The special court of Swaziland dismissed the petition…
VISCOUNT HALDANE: This is an appeal from a judgment of the

Special Court of Swaziland, by which a petition of the appellant
has been dismissed with costs. The petition was presented against
the first respondent, and the second respondents were added at
the trial on the footing that they claimed to own the land in
controversy and that the first respondent was acting as their
manager. The substance of the petition was that certain lands,
known as Farm 188, formed part of an area originally subject to
a concession known as the ‘unnallotted Lands Concession,’
granted by the former King of the Swazis, Umbandine, on 26
July 1889. Under this concession the grantees bound themselves
to respect all prior rights, and, further, in no way to interfere
with the rights of the native subjects of the grantor. The
concession of 1889 was expressed to have been made by the
King with the advice and consent of his Indunas in Council in
favour of two persons, Thorburn and Watkins, of exclusive
grazing, and to have conferred agricultural and planting rights
over the unoccupied land within the concession, for fifty years,
with a right to renewal, at a yearly rent of 50%. The King, in
consideration of this, undertook to protect the concessionaires
in the exercise of their rights. The claim made in the petition
was that the first respondent had trespassed on the existing
rights of native occupiers and had caused them to be ejected
from the land they occupied. Evidence was taken at the trial of
the petition. It was found that certain natives and their
predecessors had been for a long time in occupation of portions
of the land included within the concession, and that they were
now being ejected from the portions of the land other than such
as had been demarcated for the sole and exclusive use of the
natives. The judgment of the Court set out that the original
concession had been confirmed on 17 December 1890, by the
High Court of Swaziland, a Court constituted by the King of the
Swazis with the assent of the British Government and the South
African Republic, and having jurisdiction to inquire into the
validity of concessions such as that in question. But on 19
September 1908, the concession was expropriated by the High
Commissioner by notice to the concessionaires under art. 12 of
Proclamation No. 3 (Swaziland),1904. The judgment went on to
state that by Order in Council of 2 November 1907, the area of
the concession became Crown land, as having been expropriated,
and that a portion of it was granted to the respondent company,
who claimed a clear freehold title under the grant. The natives,
on the other hand, claimed that their rights of use and occupation
under native law had not been affected. It was contended for
them that the rights they possessed before and after the granting
of the concession remained intact, and had been recognised
later on by Art 5 of the Order in Council made on 25 June 1903,
and that these rights had not been subsequently cut down. The
Court held that, at all events by the Order in Council made on 2
November 1907, the ownership of the land had passed to the
Crown, and that the effect of this was to extinguish any rights
of use and occupation that were in the natives; and that the
documents and circumstances showed that it was intended to
extinguish all such rights. As matter of fact, the natives were
given instead, sole and exclusive rights over one-third of the
land included in the concession, and the concessionaires had
been given such rights over the remaining two-thirds. In the
opinion of the Court below, the Order in Council of 2 November
1907, was validly made. Even if Swaziland was no more than a
protectorate, it was one which approximated in constitutional
status to a Crown Colony, and the Crown had power to make
laws for the peace, order and good government of Swaziland,
and of all persons therein. Any original native title had, therefore,
been effectually extinguished. The question which their Lordships
have to consider is whether this conclusion was right in point of
law………. In the Southern Rhodesia case, Lord Sumner, in
an elaborate judgment given on behalf of the Judicial Committee
on a special reference, expressed views which are substantially
similar. He held that a manifestation by Orders in Council of the
intention of the Crown to exercise full dominion over lands which
are unallotted is sufficient for the establishment of complete
power. Both of these cases imply that what is done may be
unchallengeable on the footing that the Order in Council, or the
proclamation made under it, is an act of State. This method of
peacefully extending British dominion may well be as little
generally understood as it is, where it can operate, in law
unquestionable dispute…………..The principles of constitutional
law laid down in the earlier part of their Lordships’ judgment
render it in their opinion impossible to maintain the argument
submitted for the appellant. That argument is that the Crown
has no powers over Swaziland, except those which it had under
the conventions and those which it acquired by the conquest of
the South African Republic. The limitation in the Convention of
1894 on interference with the rights and laws and customs of
the natives cannot legally interfere with a subsequent exercise
of the sovereign powers of the Crown, or invalidate subsequent
Orders in Council. But if this be true, it makes an end of the
appellant’s case. For the Order in Council of 1907, after providing
for power to set apart certain lands in Swaziland, the subject of
concessions by the paramount chiefs, enabled the High
Commissioner to acquire the remaining land and to deal with it.
He had therefore full power to make the Crown Grant of 16
March 1917. The power of the Crown to enable him to do so
was exercised either under the Foreign Jurisdiction Act, or as
an act of State which cannot be questioned in a Court of law.
The Crown could not, excepting by statute, deprive itself of
freedom to make Orders in Council, even when these were
inconsistent with previous Orders.
Their Lordships will humbly advise His Majesty that this
appeal should be dismissed. As the question involved is concerned
with constitutional issues and is of far-reaching public interest,
they will advise, following precedents in other cases, and that
there should be no costs of the appeal.
11.4 Northern Rhodesia Order in Council, 1911
By the 1911 Northern Rhodesia Order in Council, the earlier

Orders in Council were revoked and the two territories became
one political unit under the name of Northern Rhodesia. The
country continued to be administered by the BSA Co. under the
powers conferred by its Charter of Incorporation and the 1889
Orders in Council. The 1911 Order in Council, like the earlier

Orders, contained no provision vesting land in the Company. As
far as land was concerned the 1911 Order in Council divided
the Country into two parts, viz.: land within Barotseland and
other land. In Barotseland the Litunga had authority in tribal
matters. As regards land not within Barotseland, Natives were
protected in their occupation of land in that they could not be
removed or displaced except after inquiry and order of the
Administrator approved by the High Commissioner.
The BSA Co. granted land to the white settlers who were in
need of it. The grant took the form of a ‘permit of occupation’
whereupon on fulfillment of a development clause by the tenant,
freehold title was granted. The development clause inserted in
the ‘permit of occupation’ required the fulfillment of a stipulated
minimum development of the land. Grants of land in this manner
did of course involve displacement of the indigenous population
contrary to the assurances contained in 1911 Order in Council.11
11.5 Northern Rhodesia Order In Council, 1924
By an agreement (commonly known the Devonshire agreement)

dated the 29th day of September 1923 and made between the
Secretary of State for the colonies and the BSA Company, the
Crown relieved the Company of the administration of Northern
Rhodesia as from 1 April 1924. Under the agreement, the
Company in return for the confirmation of its rights over all
minerals in Northern Rhodesia (Barotseland excepted),
surrendered its rights over land. It was agreed, however, that
the Company should retain its title to certain freehold areas in
North Eastern Rhodesia which it held under ‘certificates of claim’
granted in 1893 by the Commissioner and Consul-General in
British Central Africa. A concession of 10,000 Sq. miles in
North Eastern Rhodesia given by the Company in 1895 to the
North Charterland Company would also be maintained, and the
Company would be given half the proceeds of all sales or leases
of land in North Western Rhodesia until the year 1965. By this
agreement, the crown obtained unfettered control over all the
other land of the territory with the exception of Barotseland,
where Native rights in land had long been secured by treaties.12
The alienation of land in Barotseland was forbidden by the
Barotse – North Western Rhodesia Order in Council, of 1899.
11
See the Report of the Commission of Inquiry into land matters in the Southern Province. Lusaka: Government
Printers.
12
Meek, C.K., Land Law and Custom in the Colonies. London: Frank Cass and Co. Ltd (1968), p. 120.
The 1911 Order in Council was revoked by the 1924 Northern
Rhodesia Order in Council by which administration of the territory
by the Company was terminated and entrusted to a Governor
appointed by the British Sovereign. The Governor was
empowered on behalf of the British sovereign to make grants
and dispositions of land within the territory other than in
Barotseland. The 1924 Order in Council contained no provision
vesting land in the British sovereign or the Governor. Grants
and dispositions of land were made to the settlers under the
powers conferred upon him by the Order.
11.6 The Creation of Reserves and Crown Lands: Northern

Rhodesia (Crown Lands and Natives Reserves) Order
in Council, 1928
Following the termination of the BSA Co.’s mandate to administer

the Territory in 1924, Sir Herbert Stanley was appointed as the
first Governor of the territory. Sir Herbert Stanley had a policy
of land reservation which was approved by the colonial office.
Shortly after the 1924 Order in Council came into operation, a
Native Reserves Commission East Luangwa (now Eastern
Province) 1924 – 1925, was appointed to inquire into what land
could be set aside for African occupation in the Fort Jameson
(Chipata) and Petauke Districts. Other Commissions dealing
with other parts of the territory were subsequently appointed.
The Northern Rhodesia (Crown Lands and Native Reserves)
Order in Council 1928 gave effect to the Recommendations of
the Native Reserves Commissions. By the Order in Council,
land (other than land in Barotseland and three freehold areas
vested in the Company) was divided into Crown lands and Native
Reserves. The effect of creating reserves was that land not so
reserved and outside reserves became Crown land. All rights
of the British sovereign in or in relation to Crown lands was
vested in and made exercisable by the Governor who was
empowered to make grants and dispositions of Crown land to
the white settlers. The indigenous people were not to be able
to enjoy customary land rights over Crown rights. The natives
were removed from Crown lands and consigned to Native
Reserves.
As to the conditions of non-native tenure in the settled areas
along the main railway line from Livingstone to Ndola, farms
were granted under freehold title, subject to a preliminary
leasehold period of five years during which personal occupation

was obligatory and a certain minimum amount of development
was to be carried out. The policy of establishing native reserves
was an attempt to implement the principle laid down by the
British Government in 1900 (under the North Eastern Rhodesia
Order in Council of 1900) that sufficient land should, from time
to time, be assigned in Northern Rhodesia for native
occupation.13 But the policy when put into practice did not prove
to be satisfactory. Many native communities objected to being
removed from Crownlands, and many European farmers found
themselves unable to obtain labour.14 Some of the reserves had
insufficient access to the railway, others became overcrowded.
Large areas of the reserves proved to be uninhabitable owing to
the absence of water supplies or the presence of tsetse fly; and
at the same time many areas from which the natives had been
removed were left without inhabitants.15
Native Reserves were vested in the Secretary of State and
set apart in perpetuity for the sole and exclusive use and
occupation of the Natives. The Governor was required to assign
land within each Native reserve to Africans, ‘whether as tribes
or portions of tribes.’ The Governor was also empowered to
make grants of land or interests in land in the Native Reserves
to non-native individuals for a period not exceeding five years.
African customary law regulated tenure in the reserves.
English Law regulated the interests in Crown land. The interests
created in the Crown land where those known to English law.16
The two types of interests that existed in Crown land were
freehold estates and leasehold estates. As a result of the 1928
Order in Council two types of tenure were created, viz.: statutory
tenure in the Crown land and customary tenure in the native
reserves. This was the genesis of the country’s dual land tenure
system that we have today.
The 1928 Order in Council was supplemented in 1929 by the
Northern Rhodesia (Native Reserves) Supplementary Order in
Council 1929 which set aside additional areas as Native
Reserves. By the Northern Rhodesia Crown lands and Native
Reserves (Tanganyika District) Order in Council 1929 the three
freehold areas vested in the BSA Co. were set aside as Native
Reserves.17
13
Ibid., at p. 121.
14
Ibid.
15
Ibid.
16
Mvunga, M.P., The Colonial Foundations of Zambia’s Land Tenure System. Lusaka: NECZAM Zambia
Limited (1980), p. 27.
17
These Orders in Council were amended in detail from time to time and ultimately consolidated by the Northern
Rhodesia (Crown lands and Native reserves) Order in Council, 1963.
It should be noted that in line with the decision in Re: Southern
Rhodesia case, the Crown had legal title to land in Northern
Rhodesia only after the promulgation of the 1928 Order in Council.
The unsatisfactory condition of the native reserves, coupled
with the fact that European settlement in Northern Rhodesia
had proved to be very much smaller than was at one time
anticipated,18 led the Government to formulate a new land policy
modelled on that adopted by the Nyasaland Government in 1936.
But instead of declaring the whole of the unalienated land to be
Native Trustland (as was the case in Nyasaland) it was decided
that areas of unalienated land which were shown by ecological
survey to be suited for non-native settlement, and by geological
survey to contain workable mineral deposits, should be retained
as Crown land.19 The Government’s new policy which was
announced in July 1942 may be summarised as follows:
(a) Crownland was to be available for non-native settlement
and for mining development and was to include land
certified to be suitable for European development and
all land known to contain mineral resources. It was to
include areas the final allocation of which could not at
the time be determined.
(b) Native Trust land was to be vested in the Secretary of
State for the Colonies and was to be set apart for the
exclusive use of natives of Northern Rhodesia. But
provision was to be made for alienation of land for
specific periods to:
(i) individual natives;
(ii) for the purpose of establishing townships; and
(iii) to non-natives in special cases and for limited
area, where it could be shown that alienation
was to be for the benefit of the natives and
the land will not be required for direct
occupation.20
The establishment of Native Trust lands was not to stand in the
way of the development of railways or of mineralised areas;
and any area which was known to contain minerals of economic
value was to be excluded from Native Trust lands.21
18
According to Dr Meek, the European population in 1938 was 13,000. Supra note 12, at p. 121.
19
Ibid.
20
See the Northern Rhodesia Government Gazette of 31 July 1942. General Notice No. 16.
21
Ibid.
11.7 The Creation of Trust lands Reserves: The Northern

Rhodesia (Native Trustland) Order in Council 1947
Not long after the creation of Native Reserves, the situation in

Reserves began deteriorating, creating a severe problem of land
pressure. The Colonial Government also found itself in an
embarrassing situation of having large tracts of unalienated land
within Crown land, while there was scramble for land in reserves.
In 1935, Sir Hebert Young was appointed Governor of the
territory having been in the same capacity in the neighbouring
British Protectorate of Nyasaland. Upon his appointment, the
new Governor questioned the efficacy of the Reserve scheme
in the Northern Rhodesia Protectorate. The Governor preferred
the Trust land scheme as it existed in Nyasaland. A Commission
of inquiry was appointed in 1935 to divide land not yet set aside
for Reserves. The Commission came up with its report in 1946.
On 14 October 1947, recommendations of the Commission were
effected by the Native Trust land Order in Council 1947. By the
Northern Rhodesia (Native Trust land) Order in Council 1947,
land described in the schedule to the order was declared to be
Native Trust land and vested in the Secretary of State to be
administered and controlled by the Governor of Northern
Rhodesia ‘for the use or common benefit direct or indirect
of natives.’ Non-indigenous persons could be granted ‘rights
of occupancy’ for duration of a maximum of ninety-nine years
so long as, in the determination of the Governor, this was in the
general interest of the Community as a whole.
11.8 Northen Rhodesia (Gwembe District) Order in Council,

1959
The Northern Rhodesia (Gwembe District) Order in Council

1959 was promulgated in order to address or meet the problems
arising from the construction of the Kariba Dam and the
inundation of portions of reserves and trust land. The Order
applied to the Gwembe Administrative District. The Order
authorised the inundation of land and gave the Governor special
powers relating to the making of grants of land, fishing rights
and the making of regulations applicable only to the Gwembe
Administrative District.
11.9 Zambia Independence Order, 1964
On attaining independence in 1964, the Northern Rhodesia

(Crown lands and Native Reserves) Order in Council 1928 to
1963, the Northern Rhodesia (Native Trust land) Orders in
Council 1947 to 1963 and the Northern Rhodesia (Gwembe
District) Order in Council 1959 were not revoked. The Zambia
Independence Order 1964, however, provided that the Orders
were to be construed with such modifications, adaptations,
qualifications and exceptions as could be necessary to bring
them into conformity with the Independence Order.
11.10 Zambia (Stateland and Reserves) Order 1964, Zambia

(Trustland) Order 1964, Zambian (Gwembe District)
Order, 1964
On attaining Independence it became necessary to:

(a) divest the British Sovereign of all rights in or in relation
to the Crown land;
(b) divest the Governor of the territory of all powers
conferred upon him by the Orders in Council and to
confer them upon the President; and
(c) divest the Secretary of State of all authority to give
instructions, directions or approvals as to the exercise
of powers under those Orders.
The Zambia (State land and Native Reserves) Order, 1964
transferred to and vested in the President of the Republic of
Zambia all rights in or in relation to Crown lands or other
immovable property in Northern Rhodesia that were vested in
the British Sovereign immediately before independence and all
Native reserves that were vested in the Secretary of State
immediately before Independence.
The Zambia (Trust land) Order 1964, transferred to and
vested in the President of the Republic of Zambia all Native
Trust land that was vested in the Secretary of State immediately
before Independence.
The Zambia (Gwembe District) Order 1964, conferred upon
the President of Zambia the powers formerly exercisable by
the Governor of the territory under the Northern Rhodesia
(Gwembe District) Order 1959 and reference to the directions
or approval of the Secretary of State deleted from that order.
11.11 Land Reforms in The First Republic 1964 - 1972
At Independence, Zambia retained both the Colonial

categorisation of land and the dual land tenure system. On 24
November 1964, Government appointed a Cabinet Land Policy
Committee to look into the question of land. A Land Commission
was subsequently appointed in 1965 to advise the Cabinet Land
Policy Committee. The reason Government decided to appoint
a Cabinet Committee and a Commission was because previous
commissions were only concerned with certain aspects of land
policy and none of them looked into the question of land in the
territory as a whole. As to the timing of the appointment of the
Cabinet and Commission this had to be after independence when
an African government with the interests of the majority was in
power.22
The terms of reference of the Cabinet Land Policy
Committee were:
(i) to examine all aspects of land policy and
administration which were inherited on Independence;
(ii) to examine the land problems submitted by the
Provincial Working Committee; and
(iii) to submit recommendations to the Cabinet on the
future land policy and land laws of Zambia.23
The terms of reference of the Johnson Land Commission were:
(i) to examine and report on all aspects of the land policy
inherited by Zambia on becoming an independent
Republic, together with all facets of administration
which stemmed from this policy;
(ii) to recommend to the Cabinet Land Policy Committee
the changes, amendments and alterations considered
necessary or desirable for the establishment of a land
policy suited to present future needs of Zambia;
(iii) to recommend to the Cabinet Land Policy Committee
the methods and procedure for implementing the
recommendations under (ii) above.24
The Land Commission was assisted by a Provincial Land
Working Policy Committee which was set up by Government in
all provinces except Western.
22
See Report of the Johnson Land Commission. Lusaka: Government Printer (1967), p. 1 - foreword.
23
Ibid., p. 3.
24
Ibid., p. 4.
The report of the Land Commission was ready in August
1967.
In general terms, the Commission made the following
recommendations:
(i) The Orders in Council should be revoked and replaced
by a Land Administration Act. This Act will regulate
the making of original grants of title, and provide for
the unification of land administration and an integrated
land system.
(ii) The law applicable to land held on statutory tenure
should be amended, simplified and enacted as part
of the legislation of Zambia so as to form the basic
land law.
(iii) A system of registered title should be introduced and
be applicable to land held under statutory tenure and
to land held under customary tenure for which
individual title is given.
(iv) Persons holding land on customary tenure should be
enabled to obtain registered title to their land and
thereafter that the basic land law should apply to the
land in place of customary law. The machinery for
giving registered title should be on the lines of the
Reserves and Trust Land (Adjudication and Titles)
Ordinance but should be brought into operation either
on the application of Occupiers of land or at the
instance of the Government.
(v) The acquisition of rights by individuals to use
unalienated state land and unoccupied land in the
Reserves, Trust Land areas and the Barotse
Province should be subject to the control of the
Government. This will entail controlling the exercise
by individuals of customary rights in relation to
unoccupied land. The introduction of controls should
be piecemeal as when political judgment determines.
(vi) The laws relating to the preservation of natural
resources, town and country planning, forests, game
and fauna conservation should be of general
application and the law relating to the compulsory
acquisition of land should apply to all land irrespective
of whether it is held under customary tenure or
statutory tenure.25
25
Ibid., p. 14, See Chapter 7 entitled ‘Recommendations’, at p. 161 of the Land Commission report for the
specific recommendations. The total number of recommendations made by the Commission totalled 63.
The Johnson Commission appended to its report a draft Act

entitled ‘Property and Conveyancing Act.’ The
recommendations of the Commission were not generally
implemented by the Government.26
11.12 Problems Created by Absent Landlords
After independence, the country experienced a flight of white

settlers who abandoned and left their large tracts of land unutilised
and/or undeveloped. The Government could not legally acquire
the land due to the Constitutional provision under section 18 of
the Independence Constitution which provided for the protection
against deprivation of property. The Independence Constitution
had an entrenched bill of rights. There was need for a referendum
to amend section 18 of the Constitution.27 The year 1969
witnessed the national campaign for a referendum to amend
section 18 of the constitution to give or pave way to compulsory
acquisition of undeveloped and unutilised land owned mainly by
absentee landlords. The majority of the voters were in favor of
amending the constitution. The amendment of the Constitution28
resulted into the enactment of the Lands Acquisition Act in 1970,
which was the law enacted to address the problem created by
the absent landlords. Compulsory acquisition of property in
Zambia is dealt with in chapter fourteen of this book.
11.13 The Western Province (Miscellaneous Provisions) Act,

1970
We have noted from above that Barotseland had a special status

within the Northern Rhodesia territory. In matters relating to
land, Barotseland was not affected by the Orders in Council.
The Litunga and his Council had powers in all matters relating
to land in Barotseland.
On 18 May 1964, an agreement known as the Barotseland
Agreement 1964, was entered into between the Government of
the Republic of Zambia and the Litunga of Barotseland to retain
the arrangements or status quo with regard to the land issue in
26
The decision to declare and vest all land in Western Province in the President and to declare it a reserve like
any other reserve in the country, was in line with the recommendation of the Land Commission. Report of
1967. See recommendation No. 3 at p. 161 of the report.
27
See Section 72 of the Independence Constitution.
28
See Act No. 33 Constitutional (Amendment No. 5) of 1969.
the independent and unitary state of Zambia which was to be
born on 24 October 1964. Under the agreement the Litunga and
his Council were charged with responsibility for administering
Barotse customary land law within Barotseland. The status quo
as per the Agreement, continued until 1970 when by virtue of
the Western Province (Miscellaneous Provisions) Act29 all land
in the Western Province was declared to be a reserve within
the meaning of and under the Zambian (state lands and Reserves)
Orders, 1928 to 1964 and vested in the President of Zambia
like all reserves in the country. The enactment of this statute
was preceded by the constitutional amendment of 1969 which
abrogated the Barotseland Agreement.30
Section 2 of the Constitutional (Amendment) (Number 5)
Act, Number 33 of 1969 which abrogated the Barotse agreement
provided that:
section twenty of the Zambia Independence Order,

1964, is amended by insertion after subsection (2)
thereof of the following new subsection:
(3) this section shall not apply to the

Barotse land agreement, 1964 (that is to
say, the agreement dated 18 May 1964,
between the Government of Northern
Rhodesia and the Litunga of Barotse Land
which provides that it may be cited by that
title) which agreement shall on and after
the commencement of the Constitution
(Amendment) (Number 5) Act, 1969,
cease to have effect, and all rights (whether
vested or otherwise), liabilities and
obligations there under shall thereupon
lapse.
The three categories of land continued to be in existence until

1995, when by virtue of the Lands Act of 1995, the Zambia
(State land and Reserves) Orders in Council, 1928 to 1964 and
the Zambia (Trust land) Orders 1947 to 1964, inter alia, were
repealed and reserves and Trust land were merged into one and
became known as customary area.
29
Chapter 297 of the Laws since repealed by the Lands Act, 1995.
30
See Constitutional (Amendment) [No. 5] Act No. 33 of 1969.
11.14 Summary of Chapter Eleven by Way of a General

Commentary on the Colonial Land Policies
The advent and imposition of colonialism in Africa altered the

African land relations based on customary tenure. Colonial rule
in many parts of Africa in general, led to changes in land tenure
systems. Mvunga has observed that in sub-Saharan Africa,
relationships and conflicts between Africans and European
interests are or were strongly reflected in the land policies.31
The two interests usually clashed and resulted in uprisings.
Mvunga has further observed that in countries or territories such
as Kenya, Malawi and the two Rhodesias that had a heavy
presence of white settlers, the land tenure system fully
acknowledged the European interests.32
Economic considerations were paramount in the creation of
various categories of land in the Northern Rhodesia
protectorates. Mvunga has observed thus:
…the creation of the various categories of land

was influenced by many factors all hinging on
economic interests. There was need to assure
European settlers with land for their settlement
and exploitation. But this could not be achieved
without designating reserves within which to
confine the indigenous people. But the latter also
needed good and adequate land for their
utilization. The reconciliation between the two
interest groups was not an easy one. Then of
course the mineral deposits of Northern Rhodesia
necessitated the exclusion of those areas known
or believed to have minerals from land under
African occupation.33
Colonialism entailed the usurpation of land of the local people

by the white settlers. The land policies of the colonial
Government were discriminatory. The indigenous people were
consigned into the reserves which generally had poor soils, not
serviced with communication and sometimes infested with tsetse
flies. The struggle for independence was not only about regaining
the political freedoms but also regaining the land that was
confisticated by the colonialists.
31
Mvunga, M.P., supra note 1, at p. 2.
32
Ibid.
33
Ibid., at p. 41.
The demands for the retrieval of the land have in some cases
resulted into land wars. For instance, in Zimbabwe, the conflict
between the so called war veterans and the white commercial
farmers is or was about the unequal distribution of land. For
true ‘independence’ to be achieved, both political freedom and
the land had to be regained. This could explain the land liberation
struggle taking place in Zimbabwe today and this clearly reflects
the thinking of President Robert Mugabe who succinctly put it
thus:
For us land is about life and death. Many wonder

why the issue of land is such a fundamental national
question in Zimbabwe and elsewhere in our
Southern African region. They need not go very
far. It remains a principal and loaded marker of
frontiers of our being both as individual and as
sovereign nations, a marker whose utility and
symbolism runs the whole gamut, right down to
the common man and woman in the village. For us
life comes from, flourishes on and ultimately ends
in land. Our loss of it through colonial conquest
went deeper in meaning than the mere loss of a
means of production. It amounted to loss of our
being…..The liberization struggle in its varied and
cumulative phases was principally about recovering
our land from British colonial settlers who had
expropriated it from us, with the legal sanction and
benediction of the British establishment…… To
that extent, 1980, the year we regained our
independence was an important detour in the long
march to full sovereign statehood. It meant the
beginning of the third Chimurenga, third liberisation
struggle, whose principle focus would be
restoration of equity and fairness in the ownership
and access to national resources away from
colonial and racial divisive misallocation. That way
our goal of founding a non-racial fully integrated
multicultural society of equals would be realized.
Our land Reform Programme seeks to do and
achieve no more than that. It cannot be realized
by anything short of that…Zimbabwe’s land and
other natural resources must first and foremost be
for Zimbabweans! This is our vision, which is also

our survival so let it be.34
In the Southern African region Zimbabwe, and Namibia

including South Africa have a shared history of violent
colonial dispossession of land, without compensation.
The independent governments of these countries are
faced with an enviable and difficult task of redistributing
the land to the masses who were dispossessed of their
ancestral lands. The process of land redistribution in
Zimbabwe has sadly led to loss of several lives. In South
Africa there are currently threats of ‘invasion options’
as recently witnessed in Zimbabwe.
34
See foreword by President Mugabe to the ‘Zimbabwe Land Reform Programme Paper’, June 2001.
377
Chapter Twelve
LAND REFORMS IN THE SECOND

REPUBLIC: The Land (Conversion of Titles) Act
12.0 Introduction
At independence, Zambia retained both the colonial

categorisation of land, and the two regimes of land tenure, i.e.,
statutory and customary tenures. Even if a Land Commission
was appointed shortly after Independence in November 1964
its recommendations, contained in its report of 1967, were not
implemented save the recommendations on compulsory
acquisition of unutilised land and the declaration of all land in
Barotseland as a reserve like any any other reserve in the
republic.
The uncertainty in the country’s land policies continued until
30 June 1975, when President Kaunda in his address to the 6th
United National Independence Party (UNIP) National Council
at Mulungushi Rock of Authority, Kabwe, announced far reaching
changes to the country’s land tenure system.1 The changes
were made against a background of land speculation (especially
of bare land) and manipulation of property prices. Speculation
in land had become rampant after independence and was
exemplified by one case which President Kaunda in his speech,
not only described it as mere profiteering, but also insanity. The
case involved the sale of a vacant plot of land at the present
Development Bank of Zambia (DBZ) site opposite Lusaka City
Council Library. The parties to the transaction were Solar
Investments (Z) Limited and DBZ. By a conveyance dated 3
April 1975, one George Louis Lipschild of Lusaka sold to Solar
Investments Limited three plots, each less than a quarter of an
acre, at a total consideration of K150,000. On the same day, 3
April 1975, by another conveyance made between Solar
Investments and DBZ, one of the three plots was sold for the
sum of K100,000 to DBZ. President Kaunda in his speech
directed Solar Investment to give back to DBZ the money already
paid to them for the plot and that the vacant plot was to be
immediately taken over by the state. President Kaunda further
ordered the sacking of those involved in negotiating the deal.
1
See Address by His Excellency the President Dr K.D. Kaunda to the National Council of the United National
Independence Party, Mulungushi Hall, Kabwe, 30 June - 3 July 1975. President Kaunda’s speech has since
become known as the Watershed Speech.
12.1 Land Reforms Announced by President Kaunda
Among the land reform measures announced by President

Kaunda which were to take effect immediately were:2
(1) Farm land

All freehold titles to land and all land held by commercial
farmers under freehold title was converted to leasehold
of 100 years. Unutilised tracts of farmland were with
immediate effect to be taken over by the State.
(2) Land in Residential Areas in Cities and Towns
Freehold titles to land in urban areas were also converted
to leasehold for 100 years effective from 1 July 1975. No
more undeveloped land in urban areas was to be sold
apart from developments on the land. All vacant plots
and undeveloped land in and around Lusaka and all other
cities and towns were to be taken over by local authorities.
(3) Real Estate Agents
All real estate agencies were closed down. These were
identified as largely responsible for inflated prices of land
and housing.
(4) Rent Control measures
President Kaunda identified the area of provision of rent
as a field where there was extensive exploitation of the
common man. Individuals were banned from building
houses for rent. The question of accommodation was to
be left to the State, with its institutions like the Party,
Central Government, Local Government, Parastatal
Organisations and Co-operatives. All rented buildings
owned by individuals whose value or cost had been
realised were to be taken over by local authorities.
(5) Control of Unplanned Townships
Local Authorities were to see to it that no unauthorised
buildings were erected within their areas of jurisdiction.
12.2 Theoretical Justification of The 1975 Land Reforms
The 1975 land reforms were largely influenced by UNIP’s

socialist ideology, the Philosophy of Humanism and President
Kaunda’s perception of the African traditional conception of
land ownership. Mvunga has observed that the whole tenet of
2
Ibid., pp. 43-47.
LAND REFORMS IN THE SECOND REPUBLIC:
THE LAND (CONVERSION OF TITLES) ACT 379
the 1975 reforms hinged on President Kaunda and his Party’s
thinking that land must remain the property of the State, a position
or premise which in no way departed from the traditional
heritage.3 In relation to land, UNIP’s conception of land owning,
which was based on the ideology of Humanism, was that land
was to remain the property of the state.
Kaunda claimed:
land obviously must remain the property of the

State today. This in no way departs from our
heritage. Land was never bought. It came to
belong to individuals through usage and the
passing of time. Even then the chief and elders
had overall control although this was done on
behalf of all the people.4
Kaunda further observed:
We humanists categorically state that not a

centimetre of land, nor indeed any natural
resources, should be owned by an individual. An
individual or groups of individuals may be leased
land by the State or other form of community
government ….the law of the land must be
specific so that we can work out a system of
land reform so that land ownership reverts to
the society as a whole …we must….establish a
new order… one in which land is not subject to
machinations of merciless speculators and
manipulators. It is the most sacred and indeed
the most highly priced of all natural resources in
God’s creation and it must therefore be made
available to all on equal terms.5
Mvunga has criticised the above exposition of the African

conception of land owning as not adequately reflecting on the
African concept of land ownership.6 Mbao has observed that
implicit in Kaunda’s observations is the view that

the predominance of group interest in land, be
3
Mvunga, M.P., Land Law and Policy in Zambia. Gweru: Mambo Press (1982) p. 86.
4
Kenneth K.D., Humanism in Zambia and a Guide to its Implementation: Part Two. Lusaka: Government
Printer (1974) p. 14
5
Ibid., pp. 33 - 34.
6
Supra note 3.
they tribal, clan lineage or family militated against

individual acquisitiveness and extreme inequalities
in land holding. While this was generally true in
most agrarian systems it didn’t preclude individual
ownership of substantial and exclusive
proprietary interests and rights in Land.7
The African concept of land holding is dealt with under chapter

twenty of this book.
12.3 Salient Provisions of the Land (Conversion of Titles) Act
The Land (Conversion of Titles) Act was the legislation that

was to implement the land reforms announced by President
Kaunda in his Watershed Speech. Even if the Act was passed
on 19 August 1975, it was deemed to have come into operation
on 1 July 1975.8 This was obviously in line with President
Kaunda’s announcement and order that the land reforms he
announced on 30 June 1975, were to take effect from, ‘one
second past midnight’ of 1 July 1975.
12.3.1 Objectives of the Act
The preamble to the Act provided that it was an Act to provide for:
(a) the vesting of all land in Zambia in the President;
(b) for the conversion of titles to land;
(c) for the imposition of restrictions on the extent of
agricultural land holdings;
(d) for the abolition of sale, transfer and other alienation
of land for value;
(e) and for matters connected with or incidental to the
foregoing.
12.3.2 Section 4: Vesting Clause – State Ownership of all Land

in Zambia
Section 4 of the Act vested all land in Zambia in the President.

The section provided:
7
Mbao, M.L., ‘Public Land Ownership and Development Controls and their Implications for Accessibility to
Urban Land in Zambia’, in Lesotho Law Journal, Volume 5 (1989), No. 2.
8
See Preamble to the Act as well as section 2 of the Act.
Notwithstanding anything to the contrary
contained in any other law, deed, certificate,
agreement or other instrument or document, but
subject to the provisions this Act, all land in
Zambia shall vest absolutely in the President and
shall be held by him in perpetuity for and on behalf
of the people of Zambia.
The theoretical justification for vesting land in the state has

been discussed above. Section 4 implemented, by way of
legislation, the thinking that land must remain the property of the
State.
12.3.3 Section 5: Conversion of Freeholds into Leaseholds
Section 5 abolished freehold tenures and replaced them with

statutory leasehold for a maximum period of 100 years,
renewable, commencing on 1 July 1975. Section 5 enacted:
Every piece or parcel of land which immediately

before the commencement of this Act was vested
in or held by any person –
(a) absolutely, or as freehold or in fee simple or in
any other manner implying absolute rights in
perpetuity; or
(b) as a leasehold under a lease granted or
deemed to have been granted by or held of
the President for a term or years extending
beyond the expiration of one hundred years
from the date of commencement of this Act;
is hereby converted to a statutory leasehold
and shall be deemed to have been so
converted with effect from the 1st July 1975.
Section 6 of the Act provided for the creation of leasehold by

operation of the law. The section provided that:
A person whose rights over and interests in any

land have become converted to a statutory
leasehold under section five shall, as from the
date of commencement of this Act, hold such
land, as if he has been granted lease thereof by
the President for a term of one hundred years
commencing the 1st July 1975, at such rent and
on such terms and conditions and with such

covenants as may be prescribed
No compensation was payable by the President or by any other

person in respect of the conversion of the nature of title in land
or in respect of extinguishment, restriction or abridgment of any
rights or interests in or over land resulting from the operation of
the Act.9
Section 7 provided for renewal of statutory leases on expiry
by effluxion of time for a further period of 100 years unless the
lessee failed to comply with or observe any term, condition or
covenant of the lease, where the non-compliance or non-
observance was such as to render the lease liable to forfeiture.
Where the statutory lease was not renewed, the statutory
leaseholder was entitled to compensation only for the
‘unexhausted improvements.’10
12.4 Bare Land: No Value
One of the reforms announced by President Kaunda in his

Watershed Speech, as noted above, was that there would be no
more sales of vacant and undeveloped land in urban areas.
Section 7 (2) which provided for compensation only for
unexhausted improvements and not bare land per se in the
case of non-renewal of lease, was in line with the general notion
under the Act that undeveloped or bare land had no value.
This is further seen under section 10 of the Act which
implicitly provided that bare land per se had no commercial
value in that mortgages, charges and trusts could only operate
on and against unexhausted improvements on the land.
Section 10 of the Act provided that:
Any mortgage, charge, or trust subsisting over land

immediately before the commencement of this Act
shall, on such commencement operate only on and
against the unexhausted improvements on the land
and, so far as regards land apart from the
unexhausted improvements, shall be deemed to be
extinguished.
9
See section 19 of the Act.
10
‘Unexhausted improvements’ were defined under section 3 to mean ‘Anything resulting from the expenditure
of capital or labour and includes carrying out of any building, engineering or other operations in, on over or
under land, or the making of any material change in the use of any building or land.’
It has been observed that section 10 reflected the view that land
was a gift from God and could not be bought and sold and
especially made the subject of speculation by inhuman
exploiters.11 The other provision which implicitly provided that
bare land had no commercial value was the proviso to section
13 (3) of the Act, which provided that the President in fixing the
maximum consideration under the subsection, should not pay
any regard to the value of land apart from the unexhausted
improvements thereon.
12.5 Section 13: Presidential Consent for all Transactions or

Dealings in Land
Section 4 of the Act vested the land in the President for and on
behalf of the People of Zambia. Section 4 was supplemented by
section 13 which provided for the prohibition of any transaction
or dealing in land without presidential consent. It has been
observed that the requirement of prior presidential consent
offered the government the opportunity to monitor dealings or
transactions in land to ensure compliance with stated policies or
goals.12
Section 13 of the Act provided:
(1) Notwithstanding anything contained in any

other law, or in any deed, instrument or
document, but subject to the other provisions
of this Act, no person shall subdivide, sell,
transfer, assign, sublet, mortgage, charge or in
any manner whatever encumber, or part with
the possession of, his land or any part thereof
or interest therein without the prior consent in
writing of the President
(2) The President may in granting his consent
under subsection (1) impose such terms and
conditions shall be binding on all persons and
shall not be questioned in any court or tribunal.
(3) Without prejudice to the generality of
subsection (2), the President may, in granting
the consent under subsection (2), fix the
maximum amount that may be received,
recovered or secured –
11
12
Kaunda, M., ‘Ownership of Property Rights in Land in the First Two Republics of Zambia: An Evaluation
of Restrictions on Free Alienation and some Lessons for the Future’ Zambia Law Journal, Volume 21-24
(1989-92), p. 67.
(a) in the case of a disposition by sale, transfer

or assignment, as the price, premium or
consideration;
(b) in the case of a disposition by way of a
sublease, as premium, consideration or rent;
(c) in the case of a license to occupy, by way
of premium, consideration or rent or, as the
case may, be by way of periodical
payments for use and occupation;
(d) in the case of a mortgage or charge, as a
debt or advance:
Provided that in fixing any amount under

this subsection no regard shall be had to
the value of the land apart from the
unexhausted improvements thereon.
Section 13 of the Act generated a great deal of litigation. The

courts interpreted the requirement of presidential consent as a
condition precedent to any dealing or transaction in land no
matter how minute and struck down transactions which did not
comply with the section. This section is discussed below under
the segment dealing with case law.
12.6 The 1985 Amendments to The Land (Conversion of

Titles) Act: Restriction of Alienation of Land to Non-
Zambians
Initially, the Land (Conversion of Titles) Act did not provide for
any distinction whatsoever in the eligibility of Zambians and non-
Zambians to acquire land in Zambia. In 1985, Parliament
amended section 13 of the Land (Conversation of Titles) Act in
order to restrict the ability of non-Zambians to acquire land in
Zambia. The background leading to the amendment was that
Government had granted about 20,000 hectares of land in
Chiawa area to a foreign owned company that was to grow
wheat for local consumption and other crops for export.
Following a public outcry which was provoked by the grant, one
Member of Parliament moved a motion in the National Assembly
for the Government ‘to exercise care in the allocation of Land’
and proposed the revocation of the grant. The grant was opposed
on the following grounds:
(a) the inconvenience to the local people who were to be
displaced as a result of the grant;
(b) the possibility of illegal export of Government trophy
since the land allocated bordered a game management
area;
(c) the threat to national security since the land bordered
Zimbabwe; and
(d) the amount of land granted was too large for a new
company with unproven experience in the proposed
agricultural venture.13
Though the Government opposed the motion, it lost when the
same was put to a vote. The grant was later rescinded by
Government. After these events, Parliament enacted the Land
(Conversion of Titles) Act (Amendment) [No. 2] Act No. 15 of
1985 with the aim of restricting non-Zambians from acquiring
land.
The principal Act was amended by the insertion, immediately
after section 13, of the following new section:
13A. (1) No land in Zambia shall, as from the 1

April 1985, be granted, alienated,
transferred or leased to a non-Zambian:
Provided that nothing herein shall be
so construed as to affect any interest or
right acquired by any person prior to that
date.
(2) subject to complying with any other
provisions and procedures relating to
the alienation of Land or the obtaining of
consent of the President, a non-Zambian
shall be exempt from the provisions of
subsection (1) under the following
circumstances:
(a) If it is a person who has been
approved as an investor in
accordance with the Industrial
Development Act or any other law
relating to the promotion of
investment in Zambia;
13
See Verbatim Reports of Parliament Debates, Columns 1849-50, 1854 (20 February 1985).
(b) If it is a non-profit making

charitable, religious, educational or
philanthropic organisation or
institution which is registered and
is approved by the Minister for the
purposes of this section;
(c) If the interest or right in question
arises out of a lease, sub-lease, or
under-lease, for a period not
exceeding five years, or tenancy
agreement;
(d) If the interest or right in land is being
inherited upon death or is being
transferred under a right of
survivorship or by other operation
of law;
(e) If the President has given his
consent in writing under his hand.
(3) For purposes of this section, ‘non-
Zambian’ means-
(a) in the case of an individual, a person
who is not a citizen of Zambia;
(b) in any other case, a person who
does not qualify as a Zambian in
accordance with regulations made
by the president by statutory
instrument.
12.7 Critique of The Land (Conversion of Titles) Act
A number of criticisms have been levelled against the Land

(Conversation of Titles) Act. Mulimbwa has identified the defects
in relation to section 13 of the Act to be:
(i) the lack of regulations governing the determination
of prices, premiums or rent;
(ii) the absence of an appellate system, such as a land
tribunal to which aggrieved parties could appeal
decisions of the Commissioner of Lands whose office
had delegated authority to exercise the powers of
the President in matters pertaining to land;
(iii) the absence of enforcement provisions for
contravening the section, as with the rest; and
(iv) administrative delays in processing applications for
consent.14
Kaunda has identified the following weaknesses under the 1975
Act:15
(i) the system of granting consent was arbitrary in the
sense that there were no guidelines for its exercise;
(ii) the system of consent led to delays of transactions
as a result of understaffing at the Ministry of lands;16
(iii) the Act’s inadequate definition of unexhausted
improvements. Though the literal interpretation
covered all expenditures, in practice certain
expenditures such as service charges and surveyor’s
fees were not recoverable;17
(iv) the official regulation of income from land led to
underhand dealings and corruption;18
(v) lack of guidelines for determination of valuations for
purposes of fixing considerations for various
transactions in land;19 and the
(vi) absence of appellate system under the Act.20
Another general criticism levelled against the 1975 Act was
against the principle or notion that bare or undeveloped land had
no value.
12.8 Case law
(a) If prior Presidential Consent was not obtained for any

transaction or dealing in land, the whole contract was
unenforceable
Mutwale v. Professional Services Limited (1984) ZR 72
In Mutwale v. Professional Services Limited, a landlord sublet

a flat without prior presidential consent to a tenant who throughout
defaulted in paying rent. When the landlord sued for arrears,
the High Court entered judgment for the landlord for the sum
claimed, saying that the failure to obtain presidential consent
could not nullify the agreement. On appeal to the Supreme Court,
14
Mulimbwa, A.C. ‘Land Policy and Economic Development in Zambia’, in Zambia Law Journal, Special
Edition (1998), p. 85.
15
16
Ibid., at p. 68.
17
Ibid., at p. 69.
18
Ibid.
19
Ibid., at p. 70.
20
Ibid.
it was held that if prior presidential consent was not obtained for
a sublease, the whole contract including the provision for payment
of rent was unenforceable. The case is excerpted below.
GARDNER, JS: This is an appeal against a judgment of the High

Court awarding the respondent K5,000.00 in respect of arrears
of rent for a flat in Ndola.
The facts adduced on behalf of the respondent consisted of
the evidence of PW. 1 the General Manager of the respondent
company who said that in December, 1978, he was approached
by one Lufungulo, First Secretary at the Zairean Consulate, with
a request to rent a flat for a friend. On behalf of his company
PW. 1 agreed to sublet one of the flats which the respondent
company held as tenants from a superior landlord. PW. 1 said
that the agreed rental was K200 per month subject to three
months notice and the rent was to be paid to Motza Limited,
rent collectors. PW. 1 gave evidence that Lufungulo assured
him that the tenant would be responsible for payment of the rent
but he, Lufungulo would ensure, that the rent was paid regularly.
The appellant took possession of the flat in December, 1978,
until she vacated it in January, 1981, and no rent was ever paid.
PW. 1 in his evidence said he was under the impression that
rent was being paid to the rent collector and it was only when a
claim was made against the respondent company that he realised
that no rent was being paid. He said that he first realised this in
November, 1980, and a letter was then written from the
respondent company to the appellant requesting her to vacate
the flat due to nonpayment of rent. Correspondence then ensued,
including a letter from the Zairean Consulate, and the appellant
vacated the premises at the end of January, 1981, without having
settled the claim for arrears or rent.
PW. 1 stated that he agreed to sublet the flat on behalf of the
respondent company and he did not obtain consent from the
State for the subletting because, he said, the agreement was not
supposed to be permanent.
The appellant gave evidence which confirmed she had
occupied the flat because Lufungulo was her husband. There
was some discrepancy in the appellant’s evidence as to whether
Lufungulo had told her that no rent was payable for the flat
because he was a friend of PW. 1, or whether Lufungulo told
her that he had paid rent in advance for two years. From the
general evidence the learned trial judge came to the conclusion
that the appellant was the girl friend of Lufungulo who was
married to another woman.
In her defence the appellant did not raise the question of the
lack of consent to the subletting; but it was argued before the
learned trial judge, who held that, as the Land (Conversion of
Titles) Act 1975 did not state that any dealing in land made
without the President’s consent would be void and unenforceable,
he was unable to agree that the agreement was void ab initio.
The grounds of the appellant’s appeal related to the question
of whether Lufungulo was her agent who entered into the tenancy
on her behalf, whether she accepted liability for the rent by any
correspondence she had written or instigated and whether a
contract for payment of rent could be enforceable in view of
the fact that no consent had been obtained from the President in
accordance with section 13 (1) of the Land Conversion of Titles
Act 1975.
Mr Kafunda on behalf of the appellant argued the last point
as to lack of consent first.
Section 13 (1), of the Land Conversion of Titles Act reads as
follows:
13. (1) Notwithstanding anything contained in any

law or in any deed, instrument or document, but
subject to the other provisions of this Act, no person
shall subdivide, sell, transfer assign, sublet,
mortgage, charge, or in any manner whatsoever
encumber, or part with the possession of, his land
or any part thereof or interest therein without the
prior consent in writing of the President.
Mr Kafunda maintained that the legislation was intended to

prohibit the exploitation of tenants by requiring that all tenancy
agreements must have Presidential consent and that, a contract
without consent amounted to a contract to commit an illegal act
and was therefore unenforceable. He referred the court to the
case of Re: Mahmoud and Ispahani,21 in which case the
plaintiff agreed to sell and the defendant to buy linseed oil. By a
statutory order then in force, it was illegal to buy or sell or
otherwise deal in linseed oil unless both parties had a licence.
The defendant did not have a licence and it was held that,
irrespective of the parties’ state of knowledge about the
21
[1921] 2 KB 716.
existence of a licence, the contract was illegal and unenforceable

by either, since both were prohibited from making it and the
prohibition was for the benefit of the public.
Mr Mwanawasa on behalf of the respondent argued that the
contract for the subletting was not void ab initio and the agreement
as to payment of rent was enforceable. He drew the court’s
attention to the fact that section 13 (1) reads in part:
. . . no person shall subdivide et cetera his land

without the prior consent in writing of the President
...
It was Mr Mwanawasa’s contention that the reference to “his

land” referred to the land of a beneficial owner and not to a
tenant who was effecting a sub-tenancy. In the present case it
was argued that the respondent company is itself a sub-tenant
of a superior landlord and the flat was not the respondent’s land
but the land of the superior landlord.
Mr Mwanawasa further argued that there were criminal
consequences for breaches of the Act and it would be proper to
impose criminal sanctions where necessary rather than to find
that the contract was void ab initio, which was not the intention
of the parties. It was further pointed out that section of the Act
contains a provision that all agreements et cetera made before
the publication of the Act but not registered before the 1st of
July, 1974, shall insofar as they relate to land be null and void ab
initio. This, said Mr Mwanawasa, indicated that the legislature
in one section intended to provide that certain agreements would
be void ab initio and the omission of any such provision in section
13 (1) was an indication that the legislature had no such intention
in respect of that section. Mr Mwanawasa relied on the guide
to construction: ‘expressio unis est exclusio alterius’.
In arguing that the Act is meant for the security of the public
and not the security of the individual tenant, Mr Mwanawasa
submitted that, when a statute is passed which touches on some
common law principle ‘there is no presumption that the statute
is intended to override the common law’ and ‘it is a sound rule
to construe a statute in conformity with the common law rather
than against it, except where and so far as the statute is plainly
intended to alter the course of common law’. (Cited from Craies
on Statute Law (7th Edition) at pp. 339 and 340).
In connection with Mr Mwanawasa’s argument that the
prohibition against subletting without consent related solely to
beneficial owners of property, he defined beneficial owner for
the purpose of such argument as a leassee holding direct from
the State or an assignee of such a lease. Apart from the wording
of the statute there is no external aid to the construction of the
section in favour of Mr Mwanawasa’s argument. We cannot
see that it is an abuse of the language for land held by a subleassee
to be referred to during the term of the sublease as ‘his’ land.
On the contrary, to limit the effect of the section as suggested
by Mr Mwanawasa would defeat the object of the section.
Whatever the ultimate object of the section may be, it is clear
that it is intended that, after the passing of the Act, the State
shall have control of transactions relating to land. If it were
possible for a first lessee to obtain consent to sublet property to
a limited company controlled by himself or indeed to any third
party, and thereafter for such company or third party to be at
liberty to sublet the property to whomsoever and at whatsoever
rental they desired without obtaining Presidential consent, the
provision that the original subletting required consent would be
pointless. We have no hesitation in finding that the word ‘his’ in
section 13 (1) of the Act refers to any person having any legal
estate in land at the time of a proposed transfer of parting with
possession.
So far as Mr Mwanawasa’s argument that criminal
consequences for breaches of the Act would be more
appropriate than regarding transactions as void and
unenforceable is concerned we observe that no criminal
sanctions are provided for by the legislation, and can find no
authority for the proposition that, in civil transactions governed
by statute, penal remedies are preferable to civil ones. This
argument does not assist Mr Mwanawasa’s desired construction
of the section.
So far as the reference to the common law is concerned we
entirely agree with Mr Mwanawasa and the authorities to which
our attention has been drawn that there is no presumption that a
statute is intended to override the common law and that it is a
sound rule to construe a statute in conformity with the common
law. The latter part of this proposition is of course qualified as
Mr Mwanawasa fairly pointed out by the words in Craies
‘except where and so far as the statute is plainly intended
to alter the course of common law.’ There is no doubt that the
common law allows parties to enter into contracts concerning
land, provided that they are not illegal or immoral, but the Act
with which we are dealing expressly forbids dealing with land

without Presidential consent and to this extent is plainly intended
to alter the course of common law.
With regard to the argument that section 15 of the Act contains
a specific provision that certain agreements relating to land shall
be null and void ab initio, whereas no express words are included
in section 13 it is noted that section 15 relates to agreements
which were not legally forbidden before the 1 July 1975, and it
was necessary for the legislature to make special provision for
such previously legal agreements. In the same way the Land
and Deeds Registry Act (Cap 287) by section 6 provides that
any document not properly registered within the time specified
shall be null and void. In that case, prior to the passing of the
Land (Conversion of Titles) Act, perfectly legal contracts could
be entered into, but if they were not registered within a specific
time limit they were statutorily held to be void. The same situation
does not arise with contracts relating to land which are entered
into without the prior consent of the President. No such contracts
could at any time be legal and it would be otiose for the legislature
to provide that contracts which by law must not be made will be
null and void if they are made.
We bear in mind the comments made by the learned authors
of Chitty on Contracts (25th Edition) at paragraph 1147 (2)
where it is said:
1147 (2) The courts have also been reluctant to

find contracts unenforceable because the illegality
doctrine operates in an all or nothing way and there
is no proportionality between the loss ensuing from
non-enforcement and the breach of statue. . .
and in the same paragraph -
The courts have also been sensitive to the fact
that non enforcement may also result in unjust
enrichment to the party to the contract who has
not performed his part of the bargain but who has
benefited from the performance by the other party
...
The apparent injustice that might in some cases ensue is mitigated

by the fact that a person who unwittingly breaches a statute as
a result of the fraud of another party, may have an alternative
cause of action for breach of warranty or deceit as the case
may be. No such circumstances exist in this case. The failure to
obtain consent was solely because apparently the respondent
company did not think that it was legally necessary to do so.
We find therefore that as the purported subletting by the
respondent was without prior Presidential consent as required
by section 13 (1) of the Land (Conversion of Titles) Act 1975,
the whole of the contract, including the provision for payment of
rent, is unenforceable. The appellant having succeeded on this
ground there is no need to consider the other grounds of appeal.
The appeal is allowed with costs to the appellant in this court
and in the court below.
(b) Summary of other cases involving section 13 (1) of The

1975 Act
The courts have had occasion before and after the Mutwale
case to interpret the effect of section 13 of the 1975 Act on the
various dealings in land. In Attorney General v. Zambia Sugar
Co. Ltd and Another,22 the High Court held that a debenture
creating a floating charge over assets of the company which
included land required prior written consent of the President
under section 13 (1) of the 1975 Act.
In Hina Furnishing Ltd v. Mwaiseni Properties Limited,23
the High Court held, inter alia, that without presidential consent
under section 13 (1) of the Lands (Conversion of Titles) Act, no
legal estate or interest in the demised premises was conveyed
to the plaintiff tenant. In Naik and Naik Motors Ltd v.
Chama,24 it was held that the prohibition against letting premises
without presidential consent applied primarily to the landlord in
the absence of any wrongdoing on the part of the tenant, and it
was therefore for the landlord to obtain consent and to suffer
from any illegality arising from failure to obtain such consent. A
tenant who was not in default himself did not lose the protection
of the Rent Acts, as a result of a landlord’s failure to obtain
presidential consent.
In Mufalo v. Nganga,25 the Supreme Court held that there
was nothing to prevent parties entering into contracts for the
sale of land conditionally upon the obtaining of presidential
consent under section 13 (1) of the Land (Conversion of Titles)
22
(1977) ZR 27.
23
(1983) ZR 40.
24
(1985) ZR 227.
25
(1988/89) ZR 88.
Act. In Mpashi v. Avondale Housing Project Limited,26 the

Supreme Court dispelled the misconception that section 13 of
the Land (Conversion of Titles) Act operated to prohibit absolutely
the entering into contracts by purchasers and vendors
conditionally upon obtaining of Presidential consent.
In Mundanda v. Mulwani and others,27 in an appeal against
refusal to grant an order for specific performance of a contract
of sale of land, the Supreme Court held, inter alia, that:
(i) the application for permission to subdivide and
presidential consent are not matters which are usually
expected to be the subject of litigation, uncertain or
otherwise, and the need to obtain such consent is
not in itself a ground for refusing to grant an order of
specific performance. Since the court cannot make
orders which it cannot enforce, parties applying for
the specific performance of contracts for the sale of
land should come to court with evidence that if the
order they seek is made in their favour, all necessary
consents will be granted;
(ii) the legal performance of a possibly illegal contract
is enforceable.
The position that no land should be granted, alienated transferred
or leased to a non-Zambian after 1 April 1985, except as provided
for under amendment Act Number 15 of 1985, was affirmed by
the Supreme Court of Zambia in the case of GF Construction
(1976) Limited v. Rudnap (Z) Limited and Another.28
All the cases cited above dealt with land under statutory
tenure. It was not until the case of Siulapwa v. Namusika,29
that the High Court was presented with an opportunity to consider
the effect of the 1975 Act on land held under customary tenure.
26
(1988/89) ZR 140.
27
(1987) ZR 29.
28
(1999) ZR 134.
29
(1985) ZR 21.
(c) In so far as section 13 of the 1975 Act provided no
exception, all types of dealings in land, including the sale
of a village hut, had to comply with it
Siulapwa v. Namusika – (1985) ZR 21
[The facts appear from the Judgment of COMMISSIONER C.M. MUSUMALI]
This is an appeal against a decision of the learned magistrate at

Mbala. The facts of the case are that in September 1983 the
respondent sold a house to the appellant at a price of K1,000.00.
Before selling the said house to the said appellant a condition
was given to him by the said respondent. This condition was
that the house was not to be bought for one Pearson Silumbwe
as he was an objectionable character to the respondent.
After buying the said house, the appellant stayed there for a
short while. After that he moved out and let his cousin, the said
Pearson Silumbwe, to occupy it. Upon the respondent learning
of that, she sued the appellant to court for the purposes of
rescinding the contract of sale of the house and paying back the
K1,000.00 to the appellant because she was cheated, she says,
by the appellant who did not buy the house for himself and with
his own money, but did so for Pearson and using Pearson’s
money. As already stated, judgment was entered on her behalf.
In the course of arguing this appeal before me a number of
issues were raised by counsel for the parties. In the view that I
have taken, which will become apparent in the course of this
judgment, I will not deal with all those issues. I propose to only
deal with two issues which have an immediate bearing on the
outcome of this appeal.
Mr Siame raised the first such issue. In his submissions the
learned counsel quoted from page J2 line 1 of the learned trial
magistrates judgment as follows:
I should at this stage make a mention that from the

beginning of the proceedings in this case, this court
had been trying to advise and persuade the
defendant to take occupation of the house and ask
his cousin to vacate but he has refused to do so.
He has been evasive and unco-operative.
The learned counsel then submitted that the foregoing quotation

suggests that the learned magistrate had already reached a
decision from the very beginning. He went on and argued that a

decision had been reached in the matter well before even
evidence was adduced. Replying to Mr Siame’s submissions on
this point, Mr Chama for the respondent said that it was his
submission that he was in total agreement with Mr Siame that
the comments were very unfortunate. He went on and said that
if such or those comments were made in a criminal case, they
would entitle the person appealing to an acquittal.
He then submitted that the case now before this court is a
civil one. As such the comments of the learned magistrate should
not entitle the appellant to succeeding, as the decision arrived at
was the correct one in so far as our laws are concerned. If this
court finds that these comments went to the root of this case, he
went on, the proper order would be that of retrial of the matter.
A retrial order would not be the proper order in this case as
there was no consent obtained pursuant to the provisions of
section 13 of the Land (Conversion of Titles) Act, Cap 289, he
contended.
After a careful consideration of the evidence, the judgment
and the two learned counsel’s submissions in this case, I have
found that the comments of the learned magistrate quoted above
give the impression that he had decided the case well before
hearing and considering the evidence. With due respect to the
learned magistrate, it is clear from his own words that he had
taken it upon himself to begin advising the appellant that he
should order his relative to vacate the house. That was not a
proper thing for him to have done; because by so doing he was
clearly siding with one of the parties to the dispute which was
before him for hearing and determination without favour or
appearing to favour any of the parties. What the learned
magistrate did, went beyond the role a judicial officer can play
in promoting a reconciliation between the parties. Promoting a
reconciliation between the parties does not entail the telling of
one of the parties to the dispute what to do or not to do. It
means that the parties should be allowed time to discuss the
matter between themselves amicably. The court should never
be involved in such discussions because it has to be appreciated
that the parties may fail to arrive at an amicable solution. When
that happens the matter would then have to be litigated upon in
a court of law. Now if the judicial officer who would be required
to preside over the hearing of such a dispute would have
participated in the efforts of reconciliation, he would inevitably
have exhibited agreement to some degree with one of the parties
to the dispute. As a human being there is no way he could avoid
showing in one way or the other his agreement or disagreement
with one of the sides to the dispute. Now immediately that
happens, he ceases to appear to be impartial in the matter. And
when it comes to his deciding of the matter in a court of law, no
matter how flawless his decision might be, it will not be viewed
as an impartial decision as it would have been viewed if he had
not been involved in the reconciliation discussions. Judicial
officers i.e. Local Court Justices, Magistrates and Judges should
always remind themselves of the maxim: Justice must not only
be done, but be seen to be done. This principle should in fact be
the guiding principle of all people or organs of our society whose
functions involve the hearing and determination of disputes,
complaints and/or accusations before they make decisions in
favour of one party against the other. In this particular case
because of the stand taken by the learned magistrate, justice
was not seen and could not be seen to have been done. It is my
view that justice which is not seen to be done or could not be
seen to have been done is no justice at all. With due respect to
the learned magistrate in his handling of this case Justice was
not done. I would therefore allow the appellant’s appeal on this
ground. This then brings one to the question: What is the proper
order to make in this case in view of this finding? Mr Chama, as
already stated contended that retrial would not be the most
ideal order in this case as it had been conceded by the other
party that the State consent under section 13 (1) Cap. 289 was
not obtained. As such, in view of the Supreme Court’s decision
in Mutwale v. Professional Services Ltd.30 The transaction
in question was illegal and thus null and void. This argument
makes it imperative for me to first determine it before deciding
what order should be made in this judgment.
Mr Chama’s full arguments on this issue were that the main
issue this court has to decide in this case is whether or not the
property in issue is arrested under the provisions of The Land
(Conversion of Titles) Act 10 Cap. 289. If it is arrested under
that Act, the learned counsel went on, then the whole transaction
was a nullity and the respondent is then entitled to have
30
(1984) ZR 72.
possession of the property and to keep the K1,000 paid for its
price. If on the other hand this court finds that the provisions of
Cap. 289 do not arrest the said property, then the appeal must
succeed, he said.
To show that the house in question falls within the provisions
of Cap. 289 Mr Chama went on with his submissions and said
that section 5 of that Act converted all land in the Republic which
was governed by the English tenure system into statutory
leasehold of 100 years. Section 20 of the same Act provides
that all land referred to in section shall not be occupied without
lawful authority. This, went on the learned counsel clearly
showed that the legislature had in mind the distinction that existed
before the passing of this Act. But notwithstanding that
knowledge, the same legislature then provided in section 13 of
the said Act that no land should be dealt with without the consent
of the President. Mr Chama then went on and submitted that
this court in its ruling in the case of Zambia Oxygen Limited v.
Gardner Bros Limited 31 and the Supreme Court in its
judgment of Bridget Mutwale v. Professional Services Ltd
have held that any transaction relating to land without the consent
of the President is null and void. Since there was no State consent
issued in this case this appeal should be dismissed, submitted
Mr Chama.
Mr Siame on the other hand started his submissions on this
question by asking the question: Is this proper case for which
these authorities cited by Mr Chama regarding compliance with
The Land (Conversion of Titles) Act, Cap. 289 should apply?
His answer to this question was that this was not the kind of
case the legislature had in mind when passing the said Act. He
went on and said that the legislature did not address their mind
to village houses which fall within the Chief’s jurisdiction. It
would be unthinkable, the learned counsel went on, to expect
the Commissioner of Lands and his officers to control the sale
or transfer of properties in villages particularly those in remote
areas. The house in question, he said, is village a house. For the
law to have expected a villager to make an application to the
Commissioner of Lands for the sale of his house, and expect
the Regional Valuation Officer who is based in Kitwe to travel
to Mbala to valuate the house in question before he could make
his report is something that the legislature never thought of. The
kind of house in question does not have house number, plot
31
(1982/HN/809) (unreported.)
number, diagram, sketch plan and title deeds. In the absence of
all these things, one wonders where any valuation surveyor would
start from. He went on and submitted that this question of State
consent did not arise in the court below, and that in any case it
was the respondent’s job to have applied for one. I would start
my examination of the two learned counsels’ submissions on
this issue by stating that it is irrelevant as to who between the
parties had the duty to apply for a State consent under section
13 (1) of Cap. 289, as to the question of what the legal
consequences are with non-compliance to that section. As long
as there is no such consent the transaction entered into is illegal
and unenforceable altogether i.e. it is void ab initio. This will
take care of Mr Siame’s last submission that it was the
respondent’s duty to have applied for consent.
Section 13 (1) of the Land (Conversion of Titles) Act, Cap.
289 provides as follows and I quote:
13 (1) Notwithstanding anything contained in any

other law or in any deed, instrument or document,
but subject to the other provisions of this Act, no
person shall subdivide, sell, transfer, assign, sublet,
mortgage, charge or in any manner whatsoever
encumber, or part with the possession of, his land
or any part thereof or interest therein without the
prior consent in writing of the President.
The wording of this subsection has not made any exception to

any kind of land. According to this subsection every kind of land
whether it was freehold land prior to 1 July 1975 or not falls
within its provisions. This means that even ordinary villagers in
some very remote parts of this country have to apply for State
consent if they propose to deal in land. Land here includes a
house.
Now examining the history of why it was deemed necessary
to pass this piece of legislation, one finds that it was not meant
to cover every kind of land tenure other than the former freeholds
which under section 5 of Cap. 289 were converted into statutory
leaseholds. When it came to drafting the necessary legislation
every type of land was embodied. My own view is that it is not
possible for some classes of people in this country to comply
with the Act in question. This is because their systems of land
tenure are and have been typically traditional and have not known
the kind of procedure covering the British type of land ownership
where we derive our land tenure system provided for under the
Lands and Deeds Registry Act, Cap. 287 and other related pieces
of legislation. The other problem which would come in with the
making of Cap. 289 applicable to all types of land tenure is the
very exorbitant charges attendant on conveying matters. Many
villagers would not be able to afford the charges. There is also
the general problem of the Act, i.e., Cap. 289 greatly
inconveniencing the rural populace who normally and convenient
just make representations to their chiefs regarding requests for
land and once the chief grants their requests, they get the land
or part of it asked for and they settle on it or begin tilling it as
their land. It is my considered view that in enacting the Land
(Conversion of Titles) Act. Cap. 289, the draftsman ought to
have excepted land held other than by former freeholds. But
whatever the consequences of an Act of Parliament the duty of
this court is to construe what it says and not ‘to modify the
language of an Act of Parliament in order to bring it into
accordance with (my) own views as to what is right or
reasonable’ as the learned author says at page 91 second
paragraph of Craisie on Statute - Law 17th Edition. That same
author at page 90 second paragraph says and I quote:
Where the Language is explicit, its consequences

are for Parliament and not for the courts to
consider. In such a case the suffering citizen must
appeal for relief to the lawgiver and not to the
lawyer.
And earlier on at page 87 the same learned author had the

following to say in the second paragraph and I quote:
. . . where the words of an Act of Parliament are

plain the court will not make any alteration in them
because injustice may otherwise be done. Where
the language of an Act is clear and explicit, we
must give effect to it whatever may be the
consequences, for in that case the words of the
statute speak the intention of the legislature.
The wording of The Land (Conversion of Titles) Act and

especially section 13 subsection 1 is plain and unambiguous. If
the wording had been ambiguous and one construction of those
words or that Act leads to a lot of inconveniences and another
construction does not, the one which leads to least
inconveniences would be preferred. But in a case like the one in
issue namely the provisions of section 13 (1) of Cap. 289, where
there is no ambiguity in the wording, this court, as can be seen
from a very long chain of authorities which have been dealt
with in Craies on Statute law dealing with the interpretation of
statutes the court has and must as a matter of duty interpret
what the legislature has enacted, the consequences of that
interpretation notwithstanding.
I for one am a very firm proponent of the doctrine of
separation of powers. It is my very strongly held view that at no
point in time should that separation be interfered with. The three
arms of a democratic Government namely, the legislature, the
judiciary and the executive should be left to function
independently in the fullest sense of the words ‘left to function
independently.’ Thus much as I may have reservations regarding
the wording of section 13 (1) Cap. 289 in so far as it provides
for no exceptions to its provisions of land previously held and/or
to be held otherwise than as freeholds or statutory leaseholds
respectively my task is to interpret what has actually been
enacted by that section. According to that section all types of
dealings in land in this country after 1 July 1975 have to comply
with it. This means that the sale of the house in question was
illegal and void ab initio as there was no State consent obtained
before entering into that sale. What this means is that the parties
are taken back to where they started from before the illegal
sale i.e., that the house in question belongs to the respondent
and the K1,000.00 paid by the appellant to the former to the
latter. As an illegal transaction courts of law would not have
anything to do with it. Thus although the appellant would have
succeeded on the ground earlier discussed in this judgment, the
matter cannot be ordered to be retried before another court of
competent jurisdiction because of the illegality surrounding the
transaction.
It is clear that the learned High Court Commissioner decided
the matter by applying the literal rule of interpretation to section
13 (1) of the Land (conversion of Titles) Act as it related to the
definition of Land. This decision has been a subject of criticism.
Kaunda32 has argued that the decision was questionable to the
point of being untenable. In his opinion the literal rule of
32
Kaunda, M., ‘Application of (1) The Land (Conversion of Titles) Act to Customary Land: A Critique of the
Judgment in Siulapwa v. Namusika’, Zambia Law Journal, Volume 19 (1987) p. 62.
interpretation as applied in the Siulapwa case led to absurdities.

The reason advanced is that title to land under customary tenure
is not registrable at the Lands and Deeds Registry and if
transactions in customary land were subject to state control
through the requirement of state consent it would be difficult for
the state to monitor them. Kaunda further argued that the court
could have avoided the absurdities to which the literal rule led if
it had followed the golden rule of interpretation. According to
Kaunda, the court following the golden rule of interpretation
would have held “that ‘land’ as used in Section 13(1) meant
land under statutory tenure in contradistinction to land held
under customary tenure”. He went on to further argue that
the mischief rule of statutory interpretation would have avoided
the absurdities in the Court’s Judgment. He opined:
‘This rule necessitates asking:’

What was common law before the statute?
What was the mischief for which the common law
did not provide?
What remedy has Parliament resolved so as to cure
it?
What is the true reason of that remedy?
After answering these questions, the duty of a

judge then becomes that of making such
construction as will suppress the mischief and
advance the remedy. Knowing that the mischief
that the 1975 Act sought to remedy was exorbitant
prices of vacant urban state Land, and the remedy
that Parliament had resolved so as to cure it was
the system of prior written consent together with
the power of the President to fix the maximum
amount that may be received under any transaction,
the court could have quite easily held that S. 13(1)
did not apply to customary land because, in the
first place, transactions in such land had not
exhibited any mischief that the 1975 Act would
have sought to remedy. In the second place, it is a
recorded fact that sales of vacant land are unknown
to customary land tenure systems.33
33
It would be difficult not to agree with Kaunda’s critique of the
Siulapwa decision taking inter account the whole legislative
history behind the enactment of the 1975 Act. The Government
policy behind the enactment of the Act was to control the
exorbitant prices of land and attendant speculative tendencies
which were rampant in urban areas. This emerges clearly from
President Kaunda’s Watershed Speech of 1975. Further, as
Kaunda noted, the absence of registration machinery for land
interests under customary tenure renders dealings difficult or
impossible to detect. Under state land there is a system of
registration of interests in land under the Lands and Deeds
Registry Act.34 In complying with the registration provisions of
the Lands and Deeds Registry Act Presidential Consent cannot
be dispensed with.
12.9 Summary of Chapter Twelve
This chapter has examined and considered the land reforms

undertaken by the UNIP Government in the Second Republic.
The 1975 land reforms were the first major reforms announced
after Independence in 1964. The reforms were influenced by
UNIP’s socialist ideology, the Philosophy of Humanism and
President Kaunda’s perception of the African traditional
conception of land ownership. The changes to the country’s
land tenure system were made against the background of rampant
land speculation (especially on bare land) and manipulation of
property prices in urban areas. One major reform to the country’s
land tenure system was the abolishing of freehold tenure and
converting such existing freehold tenure to a renewable Statutory
Lease of 100 years. The Land (Conversion of Titles) Act was
the legislation that was put in place to implement the land reforms
announced by President Kaunda in his Watershed Speech. The
Act, under section 4 vested all land in Zambia in the President
to be held by him in perpetuity for and on behalf of the people of
Zambia. Section 4 of the Act which vested land in the President
was supplemented by section 13 which provided for the
prohibition of any transaction or dealing in land without
presidential consent. This requirement for presidential consent
offered the Government the opportunity to monitor dealings or
transactions in land to ensure compliance with the stated policies
or goals.
34
Section 13 of the Act generated a great deal of litigation.

The courts interpreted the requirement for presidential consent
as a condition precedent to any dealing or transaction in land
and struck down transactions which did not comply with the
section. This has been illustrated and/or exemplified by the cases
that have been excerpted and/or cited under this chapter.
A number of criticisms were leveled against the 1975 Act.
The same have been pointed out in this chapter. Most of these
criticisms have been addressed or taken care of under the 1995
Lands Act which is covered in the next chapter.
405
Chapter Thirteen
LAND REFORMS IN THE THIRD REPUBLIC:

The Lands Act, 1995 and the Proposed
Constitutional Provisions Relating to Land
13.0 Introduction
The genesis or background to the 1995 Lands Act1 lies in the

Movement for Multiparty Democracy (MMD) Government’s
liberal economic policy. In its campaign manifesto of 1990, the
MMD promised to liberalise not only the economy but also the
land tenure system once in office. The MMD promised to institute
a review of the customary system of tenure, while at the same
time facilitating the emergence of the private land market. In
relation to land the MMD Manifesto provided that:
The MMD shall institutionalise a modern, coherent,

simplified and relevant land law code intended to
ensure the fundamental right to private property
and ownership of land as well as to be an integral
part of a more efficient land delivery system. To
this end an MMD Government will address itself
to the following fundamental land issues. A review
of the Land ( Conversion of Titles) Acts of 1975
and 1985, the Trust Lands and Reserves Orders-
in-Council of 1928 -1947, the Land Survey Act and
the Town and Country planning Act, in order to
bring about a more efficient and equitable system
of tenure conversion and land allocation in
customary lands; land adjudication legislation will
be enacted and be co-ordinated in a such a way
that confidence shall be restored in land investors;
the land planning system and related legislation shall
evolve such land strategy as not only to merge
reserve and trust lands, but also to meet the varied
development needs in the country. The MMD in
1
Government will attach economic value to

undeveloped land, encourage private real estate
agency business, promote the regular issuance of
title deeds to productive land owners in both rural
and urban areas, and clear the backlog of cadastral
surveys and mapping.2
It has been observed that by ideological commitment, the MMD

Government adopted a minimalist approach to intervention in
the economy and that in respect to land this meant removing all
those obstacles under the 1975 Act that infringed on the right of
free alienation.3
There was much resistance and opposition mainly from
traditional rulers, opposition political parties and some Non-
Governmental Organisations to the enactment of a new Lands
Act. The Lands Bill was first presented in the National Assembly
in August 1994 but the same was withdrawn (after much
opposition) in order to facilitate more consultation. The Lands
Bill was about a year later, in August 1995, again presented to
the National Assembly.4 The Bill was again met with fierce
opposition from the opposition members of Parliament (who even
walked out during the second reading of the Bill) who alleged
that no consultations had taken place as promised when the Bill
was withdrawn the previous year. Government, on the other
hand, argued that the Ministry of Lands did undertake
consultations in the provinces to explain both the background
and the contents of the Bill as well as to solicit views and
suggestions intended to improve the quality of the revised Bill.5
In spite of the opposition, the Land Bill was passed in the National
Assembly and the President assented the same into law on 6
September 1995.
It is a well known fact that the MMD Government was under
pressure from the World Bank and other donors to see to it that
the rejected Land Bill of 1994 was enacted into law as one of
the conditions for continued donor assistance and/or lending. As
a result of this external pressure exerted on the MMD
Government no meaningful consultations with the stake holders,
2
See Paragraph M [under Socio Economic Perspective] of the Manifesto for the Movement for the Multi-party
Democracy, 1990.
3
See Kaunda, M., ‘Ownership of Property Rights in Land in the First Two Republics of Zambia: An Evaluation
of Restriction on Free Alienation and some Lessons for the Future’, in Zambia Law Journal, Volume 21-24
(1989 - 92), at p. 73.
4
See the Hansard, National Assembly, Friday, 11th August 1995.
5
Ibid.
LAND REFORMS IN THE THIRD REPUBLIC: THE LANDS ACT, 1995 AND
THE PROPOSED CONSTITUTIONAL PROVISIONS RELATING TO LAND 407
including the chiefs, were undertaken. This could perhaps explain
the continued controversy and resentment surrounding the Lands
Act of 1995 especially by or among the traditional rulers.
13.1 Objectives of The Lands Act
From the preamble the primary objectives of the Act are to

provide the following:
(a) the continuation of leaseholds and leasehold tenure;
(b) the continuation of vesting land in the President and
alienation of land by the President;
(c) to provide statutory recognition and continuation of
customary tenure;
(d) to provide for the conversion of customary tenure
into leasehold tenure;
(e) to establish a land development fund and a lands
tribunal; and
(f) to repeal the following Acts:
(i) The Land (Conversion of Titles) Act;
(ii) The Zambia (State lands and Reserves) Order
1924 to 1964;
(iii) The Zambia (Trust land) Orders 1947 to 1964;
(iv) The Zambia (Gwembe District) Orders 1959
to 1964; and
(v) The Western Province [Land and
Miscellaneous] Provisions Act 1970.
13.2 Principal Features of The Act
13.2.1 Definitions
Section 2 of the Act defines ‘customary area’ as the area

described in the schedules to the (repealed) Zambia (State Lands
and Reserves) Orders, 1928 to 1964 and the Zambia (Trust
Land) Orders 1947 to 1964. In other words, reserves and
trustland were merged and are now known as customary area.
Section 2 further defines ‘land’ to mean ‘any interest in
land whether the land is virgin, bare, or has improvements,
but does not include any mining right as defined in the Mines
and Minerals Act in respect of any land’. This definition has
indeed conferred value to bare or virgin land. It will be recalled
from the preceding chapter that under the 1975 Act bare or
virgin land did not attract any value. Under the 1975 Act, virgin
or bare land had been excluded under the definition of land.
This, we saw, was done in order to safeguard land from
speculation, exploitation or generally making profit on bare land.
‘State land’ is defined under section 2 to mean land which is
not situated in customary area. It can therefore be said that
there are two types of land or tenures under the 1995 Lands
Act, namely, stateland (statutory tenure) and customary area
(customary tenure).
13.2.2 Vesting of Land in the President, Powers to Alienate Land

and Administration of Land
The 1995 Lands Act has continued the practice under the 1975
Act of vesting land in the President. Section 3 (1) of the Act
provides for the continued vesting of land in the President.
Notwithstanding anything to the contrary contained

in any other law, instrument or document, but
subject to this Act, all land in Zambia shall vest
absolutely in the President and shall be held by
him in perpetuity for and on behalf of the people of
Zambia.
Section 3 (2) of the Act provides that the President may (subject
to sub section (4) and to any other law) alienate land vested in
him to any Zambian.
Section 3 (3) of the Act spells out the circumstances under
which the President may alienate land to a non-Zambian. The
subsection provides that-
(3) Subject to any other provisions and procedures

relating to alienation of land, the President may
alienate land to a non-Zambian under the following
circumstances:
(a) where the non-Zambian is a permanent
resident in the Republic of Zambia;
(b) where the non-Zambian is an investor within
the meaning of the Investment Act or any
other law relating to the promotion of
investment in Zambia;
(c) where the non-Zambian has obtained the
President’s consent in writing under his hand;
(d) where the non-Zambian is a company
registered under the Companies Act, and less
than twenty-five per centum of the issued
shares are owned by non-Zambians;
(e) where the non-Zambian is a statutory
corporation created by an Act of Parliament;
(f) where the non-Zambian is a co-operative
society registered under the Co-operative
Societies Act and less than twenty-five per
centum of the members are non-Zambians;
(g) where the non-Zambian is a body registered
under the Land (Perpetual Succession) Act
and is a non-profit making, charitable, religious,
educational or philanthropic organisation or
institution which is registered and is approved
by the Minister for the purposes of this
section;
(h) where the interest or right in question arises
out of a lease, sub-lease, or under-lease, for
a period not exceeding five years, or a
tenancy agreement;
(i) where the interest or right in land is being
inherited upon death or is being transferred
under a right of survivorship or by operation
of law;
(j) where the non-Zambian is a Commercial
Bank registered under the Companies Act and
the Banking and Financial Services Act;
(k) where the non-Zambian is granted a
concession or right under the Zambia Wildlife
Act.
The instances under which a non-Zambian may acquire land

have been enlarged compared with those that existed under the
1985 Amendment to the 1975 Act.
The powers of the President to alienate land situated under
customary tenure are circumscribed under subsection 4 of section
3. The subsection provides that:
(4) Notwithstanding subsection (3), the President shall

not alienate any land situated in a district or an
area where land is held under customary tenure-
(a) without taking into consideration the local
customary law on land tenure which is not in
conflict with this Act;
(b) without consulting the chief and the local
authority in the area in which the land to be
alienated is situated, and in the case of a game
management area, and the Director of
National Parks and Wildlife Service, who shall
identify the piece of land to be alienated;
(c) without consulting any other person or body
whose interest might be affected by the grant;
and
(d) if an applicant for a leasehold title has not
obtained the prior approval of the chief and
the local authority within whose area the land
is situated.
These restrictions relating to alienation of land under customary

tenure have generated a lot of controversy and litigation as will
be seen under the section dealing with case law under this
chapter.
In terms of subsection 5 of section 3, all land in Zambia is
required to be administered and controlled by the President for
the use or common benefit, direct or indirect, of the people of
Zambia. Although all land in Zambia is vested in the President,
the day to day administration of land is delegated to the
Commissioner of Lands.6
In terms of subsection 6 of section 3, the President is
proscribed from granting or alienating land to either a Zambian
or non-Zambian for a term exceeding ninety-nine years unless
he considers it necessary in the national interest or in fulfilment
of any obligations of the Republic and it is approved by a two-
thirds majority of the members of the National Assembly.
13.2.3 Conditions on Alienation of Land and Presidential

Consent
Under section 4 (1) of the Act, the President is proscribed from

alienating any land to either a Zambian or non-Zambian without
receiving any consideration in money for such alienation and
6
See Statutory Instrument No. 89 of 1996.
ground rent for such land except where the alienation is for
public purposes. The instances of public purpose are listed under
section 4 (2) of the Act. However, where a person would wish
to convert his customary holding to leasehold tenure, no
consideration shall be paid for such conversion.7
Section 5 (1) provides that a person shall not sell, transfer or
assign any land without the consent of the President and shall
accordingly apply for that consent before doing so. It should be
noted here that unlike section 13 of the 1975 Act, which required
Presidential consent for any transaction or dealings in land,
section 5 (1) of the 1995 Act only requires Presidential consent
in cases of sell, transfer, or assignment of land. In presenting
the Bill in the National Assembly the then Minister of Lands, the
late Dr Shimaponda, said thus in justifying the new innovation:
To reduce the delays in allocation of land by

abolishing numerous requirements for state
consents to land transaction such as to mortgage,
sublet, subdivide and to charge and by retaining
the only requirements- state consent to sell, transfer
and assign.8
Where a person applies for consent and the consent is not

granted within forty-five days of filing the application, the consent
shall be deemed to have been granted.9 This is yet another
improvement when compared to the 1975 Act where no time
limits within which to grant consent were prescribed.
In terms of subsection 3, of section 5, where the President
refuses to grant consent within thirty days, he shall give reasons
for his refusal. This is a further improvement when compared
to the 1975 Act where the President was under no legal obligation
to give reasons for refusal to grant consent. A person aggrieved
with the decision of the President to refuse consent may within
thirty days of such refusal appeal to the Lands Tribunal for
redress.10 This is yet another welcome improvement when
compared to the 1975 Act, where the President’s powers or
decisions in relating to the grant of consent could not be
challenged in any court or tribunal.
7
See proviso to section 4 (1) of Cap 184 of the Laws of Zambia.
8
Hansard – 11th August, 1995 at p. 418.
9
Section 5 (2) of Cap 184 of the Laws of Zambia.
10
Section 5 (4).
13.2.4 Customary Holdings to be Recognised and to Continue
Section 7 (1) of the Act provides that every piece of land in a

customary area which was vested in or held by any person
under customary tenure before the commencement of the Act
is to continue to be so held and recognised under the Act. Thus,
the rights and privileges of any person to hold land under
customary tenure are recognised and the application of
customary law to such holding is not to be construed as to infringe
any customary right enjoyed before the commencement of the
Act.
13.2.5 Conversion of Customary Tenure into Leasehold Tenure
In terms of sections 8 (1) of the Act, a holder of land under

customary tenure may convert it into leasehold tenure not
exceeding ninety-nine years on application by way of:
(a) A grant of leasehold by the President.
(b) Any other title that the President may grant.
(c) Any other law.
The conversion of rights from customary tenure to leasehold
tenure shall have effect only after the approval of the chief and
local authorities in whose area the land to be converted is
situated.11 Subsection 3 of section 8, further provides that no
title other than a right to the use and occupation of any land
under customary tenure claimed by a person, shall be valid unless
it has been confirmed by the chief and a lease granted by the
President.
The Minister of Lands has made regulations by way of
statutory instrument which outline the procedure for converting
customary tenure into leasehold tenure.12 Under the regulations,
the chief is empowered to grant or to refuse consent to convert
customary tenure into leasehold. Where the chief refuses consent
he shall communicate such refusal [in prescribed form] to the
applicant and the Commissioner of Lands stating the reasons
for such refusal. Where the chief consents to the conversion he
is required to confirm [in prescribed form] that:
(a) The applicant has a right to the use and occupation of
that land.
(b) The period of time that the applicant has been holding
that land under customary tenure.
11
Section 8 (2).
12
See The Lands (Customary Tenure) (Conversion) Regulations-Statutory Instrument No. 89 of 1996.
(c) That the applicant is not infringing on any other person’s
rights.13
The chief is required to refer the application for conversion to
the Council in whose area the land that is to be converted is
situated. The Council, before making a recommendation to the
Commissioner of Lands, shall consider whether or not there is a
conflict between customary law of that area and the Act. If the
Council is satisfied that there is no conflict between the
customary law of that area and the Act it shall make a
recommendation to the Commissioner of Lands in the prescribed
form. The Commissioner of Lands shall accept or refuse to
accept the recommendations and is required to inform the
applicant accordingly. 14 Once customary tenure has been
converted into leasehold tenure there is a requirement to pay
ground rent.15
13.2.6 Prohibition of Unauthorised Occupation of Land
A person shall not without lawful authority occupy or continue

to occupy vacant land.16 Any person who occupies land without
a lawful authority is liable to be evicted.17
13.2.6.1 Renewal of Leases
Section 10 makes it mandatory for the President to renew the

lease upon expiry for a further ninety-nine years where he is
satisfied that the lessee has complied with or observed the terms,
conditions or covenants of the lease and the lease is not liable to
forfeiture. In the event that the President does not renew the
lease, the lessee is entitled to compensation for the improvements
made on the land. ‘Improvements’ are defined under section 2
to mean ‘anything resulting from expenditure of capital or
labour and includes carrying out of any building,
engineering or other operations in, on, over or under land,
or the making of any material change in the use of any
building or land and charges for services provided and other
expenses incurred in the development or towards the
development of land.’
13
See Regulation 2 (4) of Statutory Instrument No. 89 of 1996.
14
Ibid., Regulation 3 (3).
15
Ibid., Regulation 5.
16
Section 9 (1).
17
Section 9 (2).
13.2.7 Re-Entry
Section 13 of the Act provides circumstances under which the

President may re-enter. The section provides that:
13. (1) Where a lessee breaches a term or a

condition of a covenant under this Act the
President shall give the lessee three months
notice of his intention to cause a certificate
of re-entry to be entered in the register in
respect of the land held by the lessee and
requesting him to make representations as
to why a certificate of re-entry should not
be entered in the register.
(2) If the lessee does not within three months
make the representations required under
subsection (1), or if after making
representations the President is not satisfied
that a breach of a term or a condition of a
covenant by the lessee was not intentional
or was beyond the control of the lessee, he
may cause the certificate of re-entry to be
entered in the register.
(3) A lessee aggrieved with the decision of the
President to cause a certificate of re-entry
to be entered in the register may within thirty
days appeal to the Lands Tribunal for an
order that the register be rectified.
13.2.8 The Land Development Fund
The 1995 Lands Act established a Land Development Fund.18

In terms of section 16 (2) of the Act, the Fund shall consist of:
(a) all moneys appropriated by Parliament for the purposes
of the Fund;
(b) seventy-five per centum of the consideration paid
under section four; and
(c) fifty per centum of ground rent collected from all land.
The Fund is vested in the Minister responsible for finance and is
managed and administered by the Minister responsible for
land.19 The Fund is required to be applied to the opening up of
18
Section 16 (1).
19
Section 17 (1).
new areas for development of land.20 A council that wishes to
develop any area in its locality may apply to the Fund for money
to develop the area.21 The Minister has made regulations relating
to the Fund.22
13.2.9 Dispute Settlement: The Lands Tribunal
The 1995 Lands Act, establishes a Lands Tribunal.23 This is an

innovation when compared to the 1975 Act which did not provide
for a mechanism of settlement of disputes arising from the
exercise by the President of his powers under the (1975) Act.
The Tribunal was created as a forum for speedy adjudication of
land disputes as well as a way of reducing the cost of litigation
in land matters.24
In terms of section 20 (2) of the Act the Tribunal shall consist
of the following members who shall be appointed by the Minister:
(a) a Chairman who shall be qualified to be a judge of the
High Court;
(b) a Deputy Chairman who shall be qualified to be
appointed as a judge of the High Court;
(c) an advocate from the Attorney-General’s Chambers;
(d) a registered town planner;
(e) a registered land surveyor;
(f) a registered valuation surveyor; and
(g) not more than three persons from the public and private
sectors.
The Chairman and his Deputy are appointed by the Minister
after consultation with the Judicial Service Commission.25
The Jurisdiction of the Lands Tribunal is spelt out under
section 22 of the Act. The Tribunal has jurisdiction to:
(a) inquire into and make awards and decisions in any
dispute relating to land under the Act;
(b) to inquire into, and make awards and decisions relating
to any dispute of compensation to be paid under the
Act;
(c) generally to inquire and adjudicate upon any matter
affecting the land rights and obligations, under the Act,
of any person or the Government; and
20
Section 18 (1).
21
Section 18 (2).
22
See the Lands [Land Development Fund] Regulations - Statutory Instrument No. 88 of 1996.
23
Section 20 (1).
24
Supra note 8.
25
Section 20 (3).
(d) to perform such acts and carry out such duties as

may be prescribed under the Act or any other written
law.
In terms of the proceedings of the Tribunal the Chairman or the
Deputy Chairman presides over the sittings of the tribunal.26
The quorum consists of five members, including the Chairman
or the Deputy Chairman.27 A member of the Tribunal or an
assessor shall not sit at a hearing if he has any interest direct or
indirect, personal or pecuniary in any matter before the
Tribunal.28 The Tribunal is not bound by the rules of evidence
applied in civil proceedings.29 A person appearing as a party
before the Tribunal may appear in person or through a legal
practitioner at his expense.30 Any person aggrieved by any award
declaration or decision of the Tribunal may within thirty days
appeal to the Supreme Court.31
The Chief Justice has by virtue of the powers vested unto
him under section 24 of the Act made rules for regulating the
procedure of the Tribunal.32
13.3 Case Law
(a) Failure to consult any person or body whose interest

might be affected by the grant before alienating land
situate in a customary area is fatal
Siwale and Others v. Siwale (1999) ZR 84
Court delivered by LEWANIKA, JS, as he then was.]
This is an appeal against a decision of a High Court Judge

refusing the appellants’ application for an Order that they be
included on the Title Deeds of Farm No. 5032 Isoka, now
Nakonde. The application was made under section 11 of the
Lands and Deeds Registry Act, now Cap 185.
The brief facts before the learned trial Judge were that the
appellants and the respondent are all children of the late Donald
Siwale (hereinafter referred to as the deceased). Sometime in
26
Section 23 (1).
27
Section 23 (2).
28
29
30
Section 25 of Cap 184 of the Laws of Zambia.
31
Section 29 of Cap 184 of the Laws of Zambia.
32
See the Lands Act (The Lands Tribunal) Rules - Statutory Instrument No. 90 of 1996.
1928 the deceased was allocated about 400 hectares of land by
the colonial authorities in consultation with the traditional chief.
The deceased settled on this land and developed it and it came
to be known as Isunda. The deceased never acquired formal
title to the property as it fell in customary land previously known
as native trust land. But the property was known and accepted
as the homestead of the deceased’s family. The deceased died
on 30 November 1983. Prior to the deceased’s death the
respondent had received a letter in October 1977, requesting
him to come and settle at Isunda, as he did not seem to be doing
anything in Lusaka, the respondent was the deceased’s youngest
son. The respondent moved to Isunda in November 1977, where
he settled and stayed with the deceased up to his demise. After
the demise of his father the respondent decided to apply for title
deeds in his own name for the property left behind by the
deceased. He freely conceded in this evidence that he did not
consult any of the appellants who are his elder brothers as in his
view they had neglected the deceased and had not shown any
interest in the land. From 1984 onwards he made an application
to the Isoka District Council and obtained authority from
Chieftainess Nawaitwika for the issue of title deeds to himself.
Although he had applied for title for 400 hectares only 200
hectares was approved and he was issued with a certificate of
title for the same.
The case for the appellants as set out in the affidavit and
viva voce evidence of the 1st appellant was that the land known
as Isunda was a family property for all the children of the
deceased. At no time were they consulted by the respondent
before he made an application for the title deeds in his own
name and the 1st appellant only became aware that the
respondent had obtained title deeds when on retirement from
employment in August 1987, he went to consult the department
of Water Affairs in Isoka about sinking a bore hole at the village.
He convened a meeting of the family to discuss the situation
but the respondent was not co-operative hence the litigation.
The learned trial Judge after considering the evidence before
him found that it would not be in the best interests of the family
to include the appellants’ names on the title deeds and dismissed
the application.
Counsel for the appellants has filed five grounds of appeal
namely:
1. That the learned trial Judge erred when he held that

the late Mr Siwale had not acquired title to the land in
question.
In arguing this ground counsel said that the learned
trial Judge had found that the deceased had not acquired
title to the land in dispute. He referred to page 11 of
the record where the learned trial Judge refers to the
deceased’s interest in the land as not being ‘individual
rights or title’ and as one which was ‘communal
and one in common with the general members of
the local community.’ He said that it was evident from
the evidence on record that the deceased settled on
the land in question as far back as 1928 when it was
given to him by the colonial authorities. He submitted
that this being at the time land falling within the
traditional ruler’s domain and having been established
as a family place of residence for a long time, it was
only fair for the learned trial Judge to have treated the
deceased as the ‘owner’ of the land on which the village
was built and in that case he had title to the land under
customary law. Counsel further submitted that if the
deceased had acquired communal title, ‘one in common
with the general members of the local community,’
it was contradictory for the trial Judge to allow one
person out of the community to succeed to the whole
or a substantial part of the land to the exclusion of other
members of that community.
He further submitted that if this case were to be
dealt with under the current Intestate Succession Act
of 1989, the land in question would have easily fallen
under the definition of either ‘family property’ or
‘homestead property’ under sections 2 and 3 of the
said Act. He submitted that this was a proper case
where a cross section of a large family has an interest
in the same land that the whole family ought to be
protected by a ruling that no single member thereof
ought to deprive others of their right to enjoy the land
on which they have settled.
2. That the learned trial Judge further misdirected himself
in fact when he found that the respondent had used
‘normal channels’ to obtain the title deeds.
Counsel submitted that it was established in
evidence that at the point when the chieftainess’s
permission was being sought by the respondent in
support of his application for title deeds, the respondent
had made misrepresentations to the chieftainess to the
effect that he had the support of his family to acquire
title to the family land. He referred to the evidence of
PW. 1 on pages 134 and 135. He further pointed out
that the respondent had admitted in evidence that he
did not consult his brothers when he was making the
application and that he did not even go to the chieftainess
with any of them, and that the deceased did not give
him the farm to be held in his name. He said that all
these matters indicate a fraudulent intention on the part
of the respondent to deprive the other members of the
family of their right to enjoy access to and living on the
said land.
3. That the learned trial Judge further erred when he found
as a fact that the appellants had no interest in the land
belonging to their late father.
In arguing this ground, counsel said that the learned
trial Judge had found that there was substance in the
respondent’s assertion that the appellants did not show
interest either in settling at Isunda or developing the
village, and that had they been interested they would
have acquired the title deeds to the land earlier than
the respondent. The trial Judge further went on to hold
that his finding was reinforced by the fact that it had
taken a considerable time for the title deeds to be issued,
such that the appellants ought to have taken steps to
prevent the title deeds being issued to the respondent.
Counsel submitted that from the evidence, it is clear
that the appellants had an interest in the land. He said
that the 1st appellant only discovered the fact that the
respondent had obtained title deeds when he went to
the village to try and sink a borehole. Further, counsel
submitted that the appellants could not have known of
the respondent’s application because it was not
advertised in the media and the respondent did not tell
them about his application. He further submitted that
there was no evidence before the trial court to suggest
that the family members of the deceased had no interest
in continuing to hold the land together as a family.
4. That the learned trial Judge also erred when he held
that the inclusion of the appellants on the title deeds to
the land would bring about further problems or that it

was not in the best interest of the family.
5. That on the totality of the evidence before the learned
trial Judge it was wrong for him to refuse the application
before him.
These two grounds were argued together by counsel for the
appellants. In arguing them counsel said that the land in question
was in the nature of ‘family village’ set up and that the
respondent in his own evidence had said, ‘Isunda was regarded
as the home of my father’s children.’ He said that excluding
the appellants from the title to that land will create more problems
than it will solve. Especially having regard to the respondent’s
attitude to his brother highlighted by the respondent’s evidence
on page 156 of the record where he stated that, ‘with the title
deeds you are in control of the land and can use its
resources. I have control of the land and can control who
stays there.’ Counsel submitted that the respondent is
specifically indicating his intentions to displace the other family
members in advancing his personal interest and he was urging
the court to stop him doing so.
In reply counsel for the respondent has submitted that it is
not in dispute that the deceased settled on the land in question
many years ago with the authority of the local chief and the
colonial authorities. He said that the land in question cannot be
said to be a village. He said that the evidence on record is that
the deceased requested his children who include the appellants
to settle on the land called Isunda but the only one who heeded
the call was the respondent. Following the demise of the
deceased the respondent took steps to obtain title deeds to the
land. He went to see the chieftainess on two occasions and the
District Council also approved his application. He said that the
appellants had advanced the argument that the respondent
misrepresented the facts to the chieftainess but that the evidence
on record is to the contrary. He challenged the authenticity of
the document on page 19 of the record and further said that the
document on page 49 only refers to the respondent and not the
whole family. He further submitted that although the appellant
had applied for 400 hectares he was only allocated 200 hectares
and that the appellants were at liberty to apply for title for the
remaining 200 hectares and urged us to dismiss the appeal.
We have considered the arguments advanced by counsel for
the appellants and for the respondent as well as the evidence on
record. It is common cause that the land in question was given
to the deceased by the colonial authorities with the approval of
the local chief sometime in 1928. The deceased settled on this
land and developed it for the benefit of himself and his family.
This land was situate in a customary law area or what was then
known as native trust land and although the deceased had no
formal title to the land in question, it was generally understood
that the land in question ‘belonged’ to the deceased. The
appellants and the respondent are all the children of the deceased,
the respondent being the youngest. The appellants were all
employed and did not stay with the deceased whilst the
respondent who was not in gainful employment had settled on
the land and stayed with the deceased till his demise. It is
common cause that after the demise of the deceased the
respondent decided on his own, without consulting his elder
brothers, to apply for title deeds in his name for the land in
question. He obtained the consent of cheiftainess Nawaitwika
although there is some dispute as to whether or not he misled
the chieftainess into believing that he was doing so on behalf of
the family. However, that issue is not material for reasons that
will become clear later. Suffice it to say that the respondent
freely admitted that he did not consult his brothers and his motive
in obtaining the title deeds in his own words are:
With the title deeds you are in control of the land

and can use its resources. I have control of the
land and control who stays there. My brothers
are staying else where.
We have already made reference to the fact that this land when
it was given to the deceased was on what was then called native
trust land. Tenure in these lands was governed by the Northern
Rhodesia (Native Trust Land) Orders in Council, 1947 to 1963
as amended by the Zambia (Trust Land) Order, 1964 repealed
and replaced by the Lands Act of 1995. These orders in Council
provided for customary tenure of such land and the learned trial
Judge was in error when he held that the deceased did not have
title to the land in question at the time of his demise. Following
from that is the fact that the appellants had as much right to that
land as the respondent being all children of the deceased. Further
there were restrictions in the alienation of land held under
customary tenure in the Order 5 in Council, which are now to
be found in section 3 (4)(c) of the Lands Act, which provides as

follows:
3 (4) notwithstanding subsection (3), the President shall

not alienate any land situated in a district or an area where
land is held under customary tenure:
(c) Without consulting any other person or body whose
interest might be affected by the grant;
Quite clearly the appellants were persons who were affected

by the grant of the title deeds to the appellant and they were not
consulted before this was done.
The appellants had applied under section 11 of the Lands
and deeds Registry Act that their names be included on the Title
Deeds of Farm No. 5032, Isoka now, Nakonde. The 5th and
6th Applicants withdrew from the proceedings prior to the
commencement of the trial. For the reasons we have given, we
would allow this appeal and order and direct that the Register
be rectified in terms of section 11 (2) of the Lands and Deeds
Registry Act by the inclusion of the names of the appellants on
the certificate of title relating to Farm No. 5032, Isoka, now
Nakonde. As the appellants and the respondent are brothers
and will now own the property jointly as tenants in common and
in order to promote harmony and reconciliation, we order that
each party is to bear its own costs.
(b) Section 3 (4)(c) of the Lands Act - need to consult any
person or body whose interest might be affected by the
grant or conversion - Section 3 (4)(d) of the Lands Act -
need for applicant for leasehold title in a customary area
to obtain prior approval of the local authority
Chenda and Another v. Phiri and Another – Lat/80/98
[The facts of the case appear from the Judgment of the Lands
Tribunal]
This appeal came to us by way of an application for an inquiry

into a dispute relating to land situated on plot No. 12578/m
situated in Chibombo District in the Central Province of Zambia.
The Appellants are William Chenda and Emmanuel Chenda.
The Respondents are Agrippa Phiri, Albert Phiri and Kamal
Singh. The Appellants wish the Tribunal to determine that:
i. The Appellants have the primary and sole interest in
plot No. 12578/m situated in Chibombo District in the
Central Province of Zambia;
ii. The purported certificate of Title No. L4878 vested
in Aggripa Phiri the 1st Respondent is defective in
law as it was obtained fraudulently and the same is
therefore null and void in law;
iii. A vesting order in favour of the Appellants.
William Mudzokera Chenda swore an Affidavit in support of
the appeal in which he deposed that William Chenda senior, the
father of the Appellants was a resident of Mupwaya Village in
Chieftainess Mungule’s area until his death in 1986 and he was
appointed administrator of his entire estate. He deposed that
the land now described as plot No. 12578/m Chibombo District
was vested in his late father under the authority of Headman
Mupwaya until his death and he cultivated the land in question
for his livelihood. He further deposed that the said land was
subsequently passed on to the 2nd Appellant, Emmanuel Chenda
who continued to cultivate the same without any interference
from any person or persons and he was surprised when he
discovered that Kamal Singh the 3rd Respondent had started to
cultivate on this land under the direction and with consent of the
1st Respondent the young brother of Albert Phiri the 2nd
Respondent who is the current Headman Mupwaya. He deposed
that when he made representations to Chieftainess Mungule,
and the Chieftainess directed that the land be restored to the
Appellants’ family estate.
He further deposed that the 2nd respondent without the
appellant’s knowledge recommended the issuance of title deeds
to the 1st respondent. He deposed that although the Chieftainess
had initially granted approval for the 1st Appellant to acquire
title deeds for this land that approval was revoked at a meeting
held on 17 August 1998. He also deposed that the 1st
Respondent’s application for title deeds did not have the support
of the Chibombo District Council as the planning authority and
therefore the same is void. He deposed that the 1st Respondent’s
acts in obtaining title deeds is fraudulent and since the said
application was not supported by Chibombo District Council and
the Chieftainess’ approval was reversed the Certificate of Title
declared relating to the said piece of land should be as void. The
deponent attached to his Affidavits a sketch plan, Chibombo
District Council sets of minutes of meetings, to be presented to
the Council on 25 September 1997.
The 1st Respondent also filed an Affidavit in Opposition in

which he deposed that he inherited the land, which has now
become known as plot No. 12578/m Kabwe from his late
grandfather Headman Mupwaya who owned the property. He
deposed that on 20 November 1996 Headman Mupwaya and
his Committee recommended that he should apply for title deeds
and Chieftainesss Mungule offered him the land on 12 December
1997 and this was after a visit to the land by the Chieftainess
and her Committee. He deposed that the land had been lying
fallow for close to 18 years. He deposed that the land was
leased to the late W. Chenda by the previous Headman
Mupwaya. He stated that the late W. Chenda shifted to
Chibombo in 1980 and according to their custom the land reverted
to the Headman who held it in trust for the local community. He
further recommended, inter alia, that he be allocated the
deposed that Chibombo District Council land. He attached to
his Affidavit minutes of the meeting of the Council held on 26
June 1997 and explained that the appendices where his name
appears are in the custody of the Senior Lands Officer who had
advised him that the list was confidential and could not be
released to him as an exhibit. He, among other documents,
attached to his Affidavit, a formal letter of offer from the
Commissioner of Lands dated 31 March 1998 and Certificate
of Title No. L4879 in respect of plot No. 12578/m Kabwe issued
on 17 July 1998 in his favour.
The Appellants were represented by Mr Winter Kabimba of
W.M. Kabimba and Company and the Respondents were
represented by Mr. Robert Wood of A.M. Wood and Company.
Mr. Wood however withdrew during the course of the
proceedings and the Respondents were given time to engage
another Advocate if they so wished but we do not have on record
evidence that any other lawyer has been engaged by the
Respondents.
William Chenda adduced evidence on his behalf and on behalf
of the second Appellant. We do not intend to reproduce that
evidence as it was in line with what was contained in the Affidavit
in Support.
Mr David Kabamba, the Council Secretary for Chibombo
District Council gave evidence on behalf of the Appellant. He
testified that he assumed his position in 1995 after he was
transferred from the Copperbelt. He stated that according to
records at the Council, the land in issue is customary land under
Chieftainess Mungule and nobody owns it individually. He said
that in 1997 he received an application for this land from Kamal
Singh, 3rd Respondent and since it was in a customary area, the
Works and Development Committee went to inspect it and found
that there were people who had stayed on the land to be given
to the 3rd Respondent who was advised to go and look for
another piece of land. He admitted that, at this point the
Application had the support of Chieftainess Mungule. He denied
that the 1st Respondent ever attended any interviews in relation
to this land and that there was no record of any application from
the 1st Respondent.
He stated that the 1st Respondent was given title deeds
without authority of his Council. He also revealed that Chibombo
District Council became a full Council in January, 1998. He
vehemently denied that the 1st Respondent ever attended any
interviews for the allocation of the land in issue as such interviews
would have been confirmed through minutes of the Council for
which he was in charge as they are under his custody. He
confirmed that the Appellant’s family was found on the land
when the Works and Development Committee went to inspect
it. He denied knowledge of the 1st Respondent.
The 1st Respondent gave evidence which was almost the
same as his evidence in his Affidavit which we have already
referred to earlier except that he was surprised that Mr.
Kabamba, the Council Secretary, denied having received his
application and that he did not know him. He insisted that he
attended interviews for allocation of this land and he later
received approval which was communicated to him on a piece
of paper which he took to the Lands Department. He said that
he received a letter of offer and he paid what he was required
to pay. He denied that he obtained title deeds fraudulently.
He denied that this piece of land was given to the Chendas
by the former Headman Mupwaya.
Nathan Donald Ndulo gave evidence on behalf of the
Respondents. Mr Ndulo gave his occupation as a farmer of
Mwakawela’s village in Chieftainess Mungule’s area and during
the relevant period he was a Councilor for Katuba Ward and
this was between 1992 and 1998. He testified that the 1st
Respondent had applied for the piece of land in issue and that
he himself recommended that the 1st Respondent be given that
land. He said that the 1st Respondent attended interviews but
that his name was omitted when minutes were produced.
The Tribunal inspected the land in issue in the presence of all

the parties, their lawyers and the villagers. We were able to
note the boundary of the land in issue.
Parties were directed to file in written submissions which
the Appellants have done through their Advocates. We have not
received any submissions from the Respondents. We would like
to mention that the 3rd Respondent never appeared and therefore
did not give evidence.
The land in question is customary land which falls within the
jurisdiction of Chieftainess Mungule who had authority to
recommend allocation to the Respondent provided other
procedures are followed. By law only the President can and
does alienate or give land to those who apply for it. This power
is exercised by the President through the Commissioner of
Lands. The Commissioner of Lands in turn uses the local
authorities throughout Zambia as his agents, who interview
interested persons and successful candidates are given letters
of recommendations to the Commissioner of Lands who has
the final say whether he should take the recommendations or
not.
The 1st Respondent claims that he made his application to
Chibombo District Council for this piece of land, that he attended
interviews and that his application was duly approved by the
Council. He has not produced the letter of approval which he
says was on a piece of paper. This is unusual as from our
experience; such letters will be on a letterhead of the particular
local authority. The 1st Respondent has however produced a
formal offer from the Commissioner of Lands. There is no
explanation as to how this letter of offer came about considering
that there is no evidence that Chibombo District Council wrote
to the Commissioner of Lands recommending the allocation of
this land to the 1st Respondent. The Council Secretary has
himself denied having any record of the 1st Respondent’s
application and subsequent interviews. The minutes produced
by the 1st Respondent do not show that the 1st Respondent was
interviewed resulting in his application being approved. It is a
blatant lie for the 1st Respondent to say that the appendix to the
minutes of Chibombo District Council was in the custody of the
Senior Lands Officer and that the appendix is confidential. The
1st Respondent has not even the piece of paper on which the
approval was communicated to him. We fail to understand how
the 1st Respondent came to be issued with title deeds...
From the evidence before us it is quite clear that the
Appellants and their family have been on this land for many
years and therefore have an interest in this land. Before the 1st
Respondent proceeded to apply for title deeds for this land he
should have consulted the Appellants and their family. Section 3
(4) of the Lands Act, Act No. 29 of 1995 provides as follows:
(4) Notwithstanding Section (3) the President shall not
alienate any land situate in a district or an area where land
is held under customary tenure.
(c) Without authority of any other person or body whose
interest might be affected by the grant and,
(d) If an applicant for leasehold - title has not obtained the
prior approval of the Chief and the local authority within
whose area the land is situated.
The Appellants have said that they were not consulted and the
Respondents have not rebutted this allegation. Section 3 (4)(c)
has therefore not been complied with.
This position was reaffirmed by the Supreme Court in the
case between Siwale v. Siwale,33 the case which has been
referred to by the Advocates for the Appellants in their
submission. Failure to consult persons who may be affected by
the grant offered against section 3 (4)(c) and is therefore fatal.
Even if Chieftainess Mungule had given her consent as the
1st Respondent has insinuated, the fact that Chibombo District
Council did not approve the Respondents’ application means
that section 3 (4)(d) was breached.
We find that the Appellants have proved their case to our
satisfaction. We will allow the Appeal for reasons we have
already given in this Judgment.
We declare that Certificate of Title No. L4879 issued to the
1st Respondent on 17 July 1998 in the name of the 1st Respondent
is null and void.
We order the 1st Respondent to surrender the said Certificate
of Title to the Chief Registrar of Lands and Deeds for
cancellation. We order that the said piece of land vests in the
Appellants.
In Village Headman Mupwaya and Another v. Mbaimbi,34 it

was held by the Supreme Court, inter alia, that failure to consult
any person whose interest may be affected by the grant as
required under section 3 (1) 4(c ) of the Lands Act was fatal.
The case is excerpted below:
33
(1999) ZR 84.
34
SCZ Appeal No. 41 of 1999.
MUZYAMBA, JS: This is an appeal against a Lands Tribunal

decision that the piece of land in issue belongs to the respondent
and his family. The brief facts of this case are that the first
appellant is a headman of Mupwaya Village in Chief Mungule’s
area and the respondent is one of his subjects. The second
appellant is an Indian, resident in Zambia. Sometime in 1996
one Shakespear introduced the second appellant, who was
looking for a piece of land to settle on, to the first appellant.
After some discussions the first appellant gave the second
appellant a piece of land to settle on. This land belonged to the
respondent having, inherited it from his late father in 1984. His
deceased father settled on that land in 1938. Unhappy with the
alienation of his land, the respondent took the matter to the Lands
Tribunal who upheld his claim.
The appellants filed some grounds of appeal but as we see it,
the success or otherwise of the appeal depends upon whether
or not the provisions of the Lands Act, Cap. 184, in particular
Section 3 (1) (4)(c) (1), were complied with. The section
provides:
3. (1) Notwithstanding anything to the contrary

contained in any other law, instrument or document,
but subject to this Act, all land in Zambia shall vest
absolutely in the President and shall be held by
him in perpetuity for and on behalf of the people of
Zambia.
(4) Notwithstanding subsection (3), the President
shall not alienate any Land situated in a district or
an area where land is held under customary tenure
(c) Without consulting any other person or body
whose interest might be affected by the grant.
It is common cause that the piece of land in issue is held under

customary tenure and that the respondent was never consulted
by the first appellant before alienating his land to the second
appellant. In Siwale (2), this court had occasion to interpret the
above section and we held, at page 8 that since the appellants
were affected by the grant of Title Deeds to the respondent and
were not consulted before the grant the register of Deeds would
be rectified by the inclusion of the appellants on the certificate
of Title. This is a case involving 400 hectares of land held under
customary tenure on which the deceased, Donald Siwale settled
and all the parties are his children. Upon his death the respondent
applied to Isoka District Council for allocation of the land to
himself and obtained a letter from Chieftainess Nawaitwika for
issuance of Titles to himself. Title Deeds were issued to him for
only 200 hectares. Upon learning that this is what the respondent
had done the appellants took the matter to court for rectification
of the Register at Lands and Deeds Registry.
In the case presently before us, the law was not complied
with in that the respondent, as an interested person affected by
the grant was never consulted. The appeal must necessarily
therefore fail with costs to the respondent to be taxed in default
of agreement.
As regards the Well that was sank by the second appellant,
it is for the benefit of all villagers and if any compensation has to
be made to the 2nd appellant then all villagers must contribute
some money towards that compensation. There shall be liberty
to apply to the Lands Tribunal on this issue to determine the cost
of the Well and whether it has water and is functioning.
(c) Land held under customary tenure can only be alienated

if consent is obtained by the traditional chief from those
whose interest may be affected by such allocation. Failure
to consult renders the allocation or grant null and void
Still Water Farms Limited v. Mpongwe District Council and Others

- Supreme Court Appeal No. 90/2001
Court delivered by CHIBESAKUNDA, JS]
…In this Appeal the appellant a Company incorporated in Zambia,

which was the Appellant before the Lands Tribunal is challenging
the Lands Tribunal’s decision in favour of the four respondents.
Before the Lands Tribunal, the appellant appealed to the
Lands Tribunal seeking confirmation of the allocation of the
Farm Land No. 013 Mpongwe to it. The evidence for the
appellant given by Mr Van Rensberg who was one of the
shareholders in the appellant Company was that he came to
Zambia in 1993 on Entry Permit No. 48050. That permit entitled
him to enter and re-enter Zambia and remain in Zambia and for
a profit to be a farmer and to be self-employed. It was issued to
him on 28 September 1996, by current Chief Lesa. This Mr Van
Rensberg had an Investor’s License No. 408/02/93 issued to

him on 13 December 1994. His evidence also is that he
approached the current Chief Lesa seeking allocation of some
land to the company which he formed and registered as the
appellant Company, He testified that the current Chief Lesa
after visiting and looking at the land in question consulted the
traditional councillors. They all agreed to the Chief allocating
the appellant Company 107 hectares of land in Chief Lesa’s
area in’ a letter dated 28 September 1996. Subsequently Chief
Lesa and his councillors recommended to the 1st respondent
this allocation of land to the appellant Company. The 1st
respondent held a meeting on 5 March 1999 at which it was
resolved that inspite of the objections by the 3rd and 4th
respondents the land in question was to be allocated to the
appellant Company. The 1st respondent held another meeting
on 23 April 1999 at which meeting it approved this allocation of
this land to the appellant Company. The council secretary of the
1st respondent then communicated this approval of the allocation
of land to the appellant Company to the 2nd respondent in a
letter dated 12 May 1999 recommending the issuance of title
deeds to the appellant Company.
The appellant’s case also is that it was very strange that the
same Provincial Lands Officer despite all the foregoing events
wrote a letter to the 1st respondent directing it to revisit this
decision of allocation of land to the appellant Company allegedly
because the 3rd and 4th respondents claimed the said farmland
as theirs as it was given to them’ by the predecessor of the
current Chief Lesa. The current Chief Lesa in reaction wrote a
letter dated 31 January 2002 to the Lands Tribunal disputing the
claims of the 3rd and 4th respondents that his predecessor gave
them land as way back as 1979. In the same letter the current
Chief confirmed that he had allocated 107 hectares to the
appellant Company after consulting the traditional councillors.
The four respondents in the Lands Tribunal opposed the
appeal. In their affidavit evidence their case is that the land in
question being traditional land under customary tenure could not
have been allocated to the appellant Company because it could
only have been done so if the allocation followed a certain well
established procedure. Their case is that the letter before the
Tribunal suggesting the allocation of that land to the appellant
was done by the current Chief Lesa. The land in question had
already been allocated to the 3rd and 4th respondents by the
late Chief as way as back 1979 and that the current Chief Lesa
could only have done that allocation in consultation with the
traditional councillors and with the consent of the 3rd and 4th
respondent which the Chief did not follow.
Their case also is that at the time of the purported allocation
of the land in question by the current Chief Lesa, the 3rd and 4th
respondents had an interest in the land in question. The current
Chief did not, contrary to his assertion, consult the traditional
councillors the appellant Company mentioned in its appeal as
having been consulted. They further stated that the land in
question was adjacent to their farms so they had an interest.
They pointed out to the fact that the Mr Van Rensberg and his
brother had been renting land from the late Phillimon Ngoma as
well as from them an area of 3000 hectares. According to them
that was sufficient land for the Appellant Company to continue
carrying out farming activities.
They further deposed that the same Mr Van Resnberg on
behalf of the appellant Company had tried on previous occasions
to acquire the same land by consulting them but that they had
refused to facilitate him acquire land as they told him that that
land belonged to them. In 1996 he again approached the 4th
respondent on his own asking him to facilitate him taking over
that same land but the 4th respondent told him that he and the
3rd respondent owned that farm jointly for a purpose. So the
appellant inspite of this information, behind their backs, went to
Chief Lesa and acquired the same land surreptitiously. Thus, as
far as they were concerned the appellant Company did not follow
the right procedures and as such it was not properly allocated
the land in question. They deposed that this is why when they
had an opportunity with the Provincial Lands Officer when there
was a meeting at the provincial level they protested against the
appellant Company being allocated the land in question. They
were, therefore, surprised that even after this protest by them
Mr Van Resnberg started building a residential house on the
land in question after the purported allocation of this land by
current Chief Lesa to the appellant Company. He continued to
build the house even after receiving a letter from the Provincial
Lands Officer dated 11 January 2000. He still continued to build
even when the District Secretary, Mpongwe District Council,
wrote him a letter cautioning him about this allocation of the
land to the appellant Company.
The 3rd and 4th respondents maintained that they ought to
have been consulted before the allocation of the land in question
to the appellant. Three other traditional councillors by the names

of Amos Mali, Patson Bonsebakaya Sengela and Frank Kalyolyo
deposed in their respective affidavits supporting the 3rd and 4th
respondents that the current Chief Lesa did not consult them
before allocating the land in question, to the appellant. They also
deposed and viva voce testified that as far as they were
concerned the 3rd and 4th respondents had been allocated the
land in question as way back 1979 by the late Chief Lesa.
The Lands Tribunal, on the evidence before it, held that
according to farm permit, 107 hectares was allocated to the
appellant company But it however held that such allocation was
null and void as the current Chief Lesa did not follow the right
procedures stipulated in section 3 (4)(c) of the Lands Act in that
he did not consult the traditional councillors and all other
interested parties before allocating that land to the appellant
Company. They went on to hold that the issuance of the title
deeds, when there were strong objections from the 3rd and 4th
respondents, was wrong. They referred to the cases of Siwale
v. Siwale35 and Mupwaya and another v. Mbaimbi,36 of this
court and dismissed the Appeal.
Now before us the appellant Company referred to section 7
(1) (2) of the Lands Act, Chiefs Act and Statutory Instrument
No. 7 of 1964 arguing that the learned Chairman and his
Members of the Lands Tribunal erred in their decision by relying
on the need for the Chief to have consulted the 3rd and 4th
respondents before allocating the land to the appellant Company.
Dr Sakala, state counsel for the appellant, argued that the proper
procedure in the distribution of tradition land is not that there
has to be consultations with the 3rd and 4th respondents.
Referring to the book of An African Survey: A Study of
Problems Arising in Africa south of the Sahara, by Lord
Hailey, Oxford University Press (1957) p. 685, arguing the first
and third grounds of appeal he argued that since the land in
question was unused or unutilised tradition land, that land had to
revert to the Chief as a custodian of the community under the
Chiefs Act. He argued that the Chief has almost autochthonic
powers over such land as he does over his people. This is more
so since the land was unused or unoccupied. He referred to
Treatises and argued that the Chief has complete domain over
such land and that land is held in trust by the Chief on behalf of
the community. The Chief in that capacity has a right to allocate
35
Ibid.
36
that said land to someone else provided he consults the traditional
councillors. His argument also is that the appellant needed only
to consult the Chief and to get his consent it was up to the Chief
to consult his councillors and in this case the Chief did consult
his traditional councillors as was testified in the court below.
He argued that this was more so since the two respondents
were given land in 1979, which they had not developed. That
being so the land automatically reverted to the Chief and as
such the Chief could reallocate it to another investor he regarded
as being fit. He referred to the procedures, which the Appellant
Company went through. He pointed out to the fact that the
appellant approached the Chief. The Chief recommended the
issuance of the certificate of title deeds of that land to the
appellant. The 1st respondent held meetings and even after taking
into account the objections by the 3rd and 4th respondents
approved the allocation to the appellant on 5 March and 23 April
1999. Therefore, the equitable principle of estoppel should
operate against any change of mind by the 1st respondent - see
Dixon v. Kennaway and Taylor Fashions v. Liverpool
Victoria Trustees Limited.
On ground two, Dr Sakala argued that the Lands Tribunal
wrongly applied the ratio decendi in the Siwale v. Siwale case.
He referred to the same case and sought to distinguish it with
the case before us. According to him the Siwale case was not
on all fours with the instant appeal. He argued that even the
case of Albert Phiri Mupwaya and another v. Matthew
Mbaimbi was not on all fours with the case before us. He
therefore urged this court not to use the ratio decendi in these
two cases. On ground four he argued that the Lands Tribunal
erred when it ignored and made no ruling whatsoever on the
developments the appellant carried out on the land in question,
estimated at K40,000,000.00 for uncompleted residential house,
US $4,000.00 for water bore hole and K1,000,000.00 paid as
survey fees. It is his argument that at least, as the appellant
Company had prayed for this remedy, the court below should
have awarded the expenses it incurred in developing the land in
question.
In the last ground of appeal, Dr Sakala submitted that although
he was not going to belabour his client’s views that the challenge
by the 3rd and 4th respondents of the allocation of land to him
was motivated on racial grounds and abuse of political office he
nonetheless urged this court to scrutinise the role the 3rd and
4th respondents played in this wrangle. He submitted that for

this court to really appreciate this Judgment it should look at the
period when this land was allocated to the 3rd and 4th
respondents in 1979 and 1999 when it remained unutilised for
20 years. He submitted that the 3rd and 4th respondents suddenly
and irrationally swung into action challenging the allocation of
land to the appellant Company. He pointed out to the fact that
the 3rd and 4th respondents never developed the land in the 20
years and never showed any signs of interest only to wake up
and without justification and irrational protested on the allocation
of that land to the appellant Company. He urged this court to
analyse the motive of the 3rd and 4th respondents in challenging
the allocation. He pointed to the fact that the 3rd respondent
was a Cabinet Minister when he objected to the allocation of
that land to the appellant Company. He was still a Cabinet
Minister in the year 2000 and that he used his political profile to
challenge this allocation of land to the appellant Company. So
he urged this court to agree with his client that the 3rd respondent
must have done this because of his political profile and that the
whole challenge was based on racial motives.
We have considered the evidence, submissions and
arguments before us. It is common ground that the land in
question was traditional land held under customary tenure and
as such could only be alienated in accordance with section 3 (4)
of the Lands Act (4). This section says:
Notwithstanding subsection (3), the President

shall not alienate any land situated in a district
or an area where land is held under customary
tenure
(a) without taking into consideration the local
customary law on land tenure which is not in
conflict with this Act;
(b) without consulting the Chief and the local
authority in the area in which the land to be
alienated is situated, and in the case of a game
management area, and the Director of National
Parks and Wildlife Service, who shall identify the
piece of land to be alienated;
(c) without consulting any other person or body
whose interest might be affected by the grant;
and
(d) if an applicant for a leasehold title has not
obtained the prior approval of the chief and the
local authority within whose area the land is
situated.
The evidence that was laid before the Lands Tribunal by the 3rd
and 4th respondents supported by the affidavit and viva voce
evidence of the traditional councillors who were mentioned in
the letter as having agreed to the allocation of land to the appellant
Company was that the current Chief Lesa did not consult the
tradition councillors as well as the 3rd and 4th Respondents.
The evidence for the appellant Company is that the traditional
councillors as well as the 3rd and 4th respondents were consulted
but that the 3rd and 4th respondents objected to the allocation of
land because they had an interest in the land in question as it
had been given to them as way back as 1979 by the predecessor
to the current Chief Lesa. The Lands Tribunal rejected this
evidence for the appellant and accepted the evidence of the 3rd
and 4th respondents that they were not consulted. Quite clearly,
having accepted that the 3rd and 4th respondents were not
consulted, the provisions of Section 3 (4) came into play
according to that Section the 3rd and 4th respondents are persons
whose interest were going to be affected by the allocating of
land to the appellant Company. It was argued by the appellants
that the land in question reverted to the Chief, as it was not
developed in the 20 years the 3rd and 4th respondents had an
interest in that land. Section 3 (4) talks about a person or any
body whose interest might be affected by the grant. The
Lands Tribunal must have grouped the 3rd and 4th respondents
as persons whose interest might have been affected by the
allocation of that land to the appellant Company and as such
they ought to have been consulted. Although we agree with Dr
Sakala’s forceful argument that Chiefs enjoy autochthonic
powers over land held under customary tenure and especially
undeveloped land nonetheless section 3 (4) of the Lands Act is
couched in such a way that it is mandatory for the 3rd and 4th
respondents to have been consulted before allocating the land
to the appellant Company. Failure to do so results in the purported
allocation to be null and void.
It was also argued by the appellant Company that the Tribunal
erred in applying the ratio decidendi in the case of Siwale v.
Siwale. We agree that the facts in the Siwale v. Siwale were
different from the facts before us. In the Siwale v. Siwale case,
the deceased who had been given the land by the colonial
authorities with the approval of the local Chief sometime in 1929,
died intestate. The appellants who were his siblings objected to
their last brother obtaining ‘title’ deeds of that land without their
consent. This court agreed with them that under section 3 (4) it
was obligatory on the part of the traditional chief to seek their
consent, as according to that section their interest would have

been affected by one of their brothers obtaining title deeds of
that land. This court pointed out to the fact that that land held
under customary tenure can only be alienated if consent is
obtained by the traditional chief from those whose interest maybe
affected by such allocation. In the Siwale case the core contention
was exactly the same contention as in the case before us. In
this case before us the core question is whether or not the
procedure adopted by the current Chief of allocating land to the
appellant Company without consulting the 3rd and 4th respondents
was a proper procedure. Our view is that the procedure adopted
by the current Chief was wrong and as such the allocation of
land to the appellant is null and void.
The appellant has argued that the objection by the 3rd and
4th respondents was racially motivated and vexatious. Although
one can see that the objection by the 3rd and 4th respondents
was irrational especially taking into account the fact that the
land remained undeveloped for 20 years nonetheless, there is
no evidence to support the accusation by the appellant Company
that such objections were racially motivated and that that was
an abuse of office by the 3rd respondent. So in view of the
conclusions just made that the procedure made by the current
Chief was in breach of section 3 (4) of the lands Act, we hold
that the argument that the, challenge of the allocation of land to
the appellant Company was racially motivated and vexatious, is
not tenable.
Coming to the invitation by the appellant Company that we
should invoke the doctrine of estoppel in as far as the 1st
respondent is concerned, we hold the view that as section 3 (4)
of the Lands Act is mandatory, the doctrine of estoppel cannot
be invoked since the doctrine cannot defeat such a statutory
provision. The only point we want to consider is in relation to
the expenses incurred by the appellant Company in developing
the land in question estimated at K40,000,000.00 of the
uncompleted residential house, US $4.00 00 for water borehole
and K1,000,000.00 paid as surveying fees. We have taken note
of the fact that the appellant Company in its appeal to the Lands
Tribunal pleaded damages as alternative to the allocation of land.
We therefore hold that since the appellant Company was
allocated the land in question by the current Chief and Mr Van
Resnberg on behalf of the appellant Company believed that there
were consultations with the traditional councillors and the 1st
respondent on two occasions accepted the recommendations of
Chief Lesa and recommended to the 2nd respondent the issuance
of title deeds to the appellant Company, there was good ground
for the appellant Company to have believed that the allocation
was bona fide. The appellant Company therefore with that firm
belief developed that land, We therefore hold that the appellant
Company is entitled to recover its expenses incurred in
developing that land in question. We therefore hold that the value
of those developments must be paid back to the appellant
Company. We order that the Government Evaluation Department
should, evaluate the improvements and that this value to be paid
by the 2nd respondent to the appellant Company. We order that
the appellant be condemned in costs for this appeal and in default
of agreement, the costs to be taxed.
(d) Once customary land has been converted to leasehold, a

Chief has no control over the land and cannot thereafter
withdraw the consent to convert
Makwati v. Senior Chieftainess Nkomesha - Lat/60/97
[The facts of the case appear from the Judgment of the Lands
Tribunal]
The Appellant in this matter is one Alstone Makwati 54 years

old, retired Major in the Zambia Army of Plot, No. 323, Kabwata,
Lusaka. The appeal is against Senior Chieftainess Nkomeshya’s
refusal to allow him to settle and develop Farm No. 1671/M
Chongwe which he bought from Raphael Joseph Mapulanga in
1991. We will refer to Senior Chieftainess Nkomeshya in this
judgment as the Respondent.
In his evidence the Appellant testified that on 16 April 1991,
Mr Raphael Joseph Mapulanga sold to him Farm No. 1671/1 of
Chongwe at the price of K2,000,000.00. He said that the Farm
had earlier on been offered to Honorable Gibson Nkausu who
could not buy it because he had one already. He stated that on 6
March 1991 Mr Mapulanga in the company of Honourable
Nkausu offered the Farm to him. Mr Mapulanga showed the
Appellant the title deeds which the Appellant took to his Lawyers
Messrs Martin Banda and Company for verification who
confirmed with him that the title was okay. He said that he went
with his Lawyers to the Lands Department to conduct a search

where it was discovered that, Mr Mapulanga had a mortgage
with Standard Chartered Bank which had not been paid been
paid off. He said that his Lawyers later wrote to the Bank,
enquired to know what the redemption sum was. He said he
had earlier together with his lawyers physically inspected the
land Mr Mapulanga was offering to him and he was happy with
it.
He said that his Lawyers prepared a Contract of Sale which
both parties signed and Mr Mapulanga was paid K140,000.00
as part payment for the sale of Farm No. 1671//M Chongwe.
This was on 16 April 1991 the date of the contract. He said the
process for change of ownership was done and he was given
title deeds in his name on 25 July l994. He said all the necessary
fees such as property, transfer tax and consent fee were paid to
the relevant offices.
He said on 3 June 1997 he decided to grow some maize,
beans, groundnuts and other crops but was afraid to do so
because he realized people in that area were not happy and so
he decided to go through the headman of the area (Libuko Village)
by writing a letter on 23 June 1997, which letter he was had
been referred to the Respondent on 23 July 1997 seeking her
authority to settle on the land and to start developing it. In this
letter the Appellant gave a brief history of how he bought the
land in issue pointing out, inter alia, the following at the time of
buying it from Mr Mapulanga:
(a) The land was surveyed and demarcated with beacons
made of iron pegs in concrete;
(b) The land was all cleared and up to now nobody is using
it; and
(c) The 65 metre fully cased borehole was sunk and it is
currently not in use
(d) Title deeds issued by the Government in the name of
the late Mr Mapulanga were produced to prove the
ownership.
He suggested in this letter that if her people were interested in
his farm he was ready to instruct his lawyers to hand it over to
them but those people should be prepared to pay for it at current
valuation together with 10% legal costs total value.
The Appellant said that he was given an appointment to see
the Respondent on 29 July 1997. The Appellant stated that he
was given a one hour lecture by the Respondent and she talked
about a lot of things but what he got out of this lecture was that
the Respondent would not allow the Appellant to settle on the
piece of land because it was in a village and the late Mapulanga
did not obtain authority from either the Headman, or herself
before acquiring that land around that village. He said he could
not argue with a respectable traditional ruler like the Respondent
and when he sougt legal advice he was told the Lands Tribunal
would be the right Court to deal with the dispute. He said that it
could also be a question of politics because the Respondent is
UNIP and he was a strong MMD supporter. He also attributed
the Respondent’s stand to the fact that he would not be allowed
to settle on that land because he is not Soli.
Under cross-examination by the Respondent, the Appellant
said the title in the name of Mr Mapulanga were issued by the
UNIP Government and at that time there was no problem
because Mr Mapulanga was in UNIP but now because there is
MMD Government there is a problem. He also said he attempted
to bring Mr Mapulanga on four occasions before a traditional
court but could not come because he was sick and he promised
he would come upon recovery but he died as he never recovered.
When asked questions by the members of the Tribunal the
Appellant stated that he was advised that since there were
already title deeds, he did not need authority of the Headman or
the Respondent as such authority should have been obtained by
Mr Mapulanga. He said he had not carried out any developments
on the plot because he was not allowed to do so. He said that he
plans to put up an irrigation system for growing vegetables,
chicken run up 300 chickens, dairy animals for milk; 5 hectare
for maize growing and animal grazing. He said he was in the
process of getting planning permission from the local authority
but could not do so, because he was told to see the Respondent
before he could do, anything on that plot. He explained that
although the Contract of Sale only provides for the purchase
price as K50,000.00 there were other payments which he had
to pay himself such as property transfer tax which he paid to
Zambia Revenue Authority, Consent fees, Legal fees and that
is why the amount is for K2,000,000.00. he said he did not pay
any money to Standard Chartered Bank Limited because they
refused to accept the money because there was no record.
The Respondent, Senior Chieftainess Nkomeshya, a female
adult of Chakwela Makumbi Royal Palace, Chongwe, a
traditional ruler by occupation began her evidence by saying
that she did not know the Appellant. She said she first met the
Appellant at her restaurant in Chongwe when the Appellant
introduced himself to the Respondent.
The Appellant was given an appointment to see the
Respondent with two retainers at her palace.
The Appellant told her how he bought the plot opposite
Chongwe Secondary School from Mr Mapulanga who was
Governor in the Second Republic. She was told that the Appellant
had actually paid for the piece of land in issue. The Respondent
sympathised with the Appellant for having paid Mr Mapulanga
money for the land which did not belong to Mr Mapulanga. She
then told the Appellant to go and bring Mr Mapulanga to come
and explain how he acquired the piece of land which the Appellant
agreed he would do. She said when the Appellant came back
after some days he brought a letter from Mr Mapulanga, but
she insisted to have Mr Mapulanga but she was advised Mr
Mapulanga was no more. She said that she suggested to the
Appellant that she would consider giving him another piece of
land if he was really interested in settling in that area. She said
she was not happy with the appellant’s letter of 17 July 1997 in
which she was given a deadline within which to reply and
threatened court action. She said she could not operate under
threats. This letter read in part as follows:
While we appreciate whatever you will do for me

I should respectively (respectfully) mention that, if
there will be no favourable response within 21 days
from the date of this letter, my Lawyers will request
the Ministry of Lands to offer relevant guidance.
In addition legal proceedings will be instituted, not
to punish the people but to practice democracy and
justice
The Respondent stated that Chongwe Secondary School was

within a village called Libuko. She explained that the school
was transferred from Chalimbana in 1983 after the Government
requested her to find a suitable land for the school which she did
after consultations with village headmen. She said her people
stopped Mr Mapulanga from carrying out any further
developments after he had sunk a borehole, because he had not
sought authority from the Village Headman. She said she was
not aware that Mr Mapulanga had proceeded to process
papers for title deeds with the Commissioner of Lands. She
complained that the appellant did not have respect for her as
traditional ruler as he has kept referring to her as ‘that woman’.
She referred to a verse in the Bible, Proverbs 22 versus 23
which says ‘Don’t take advantage of the poor just because you
can. Don’t take advantage of those who stand helpless in court’.
The Lord will argue their case for them and threaten the life of
anyone who threatens theirs. She said that the Appellant was
only able to introduce himself to the village Headman through a
letter when he could have called on the village Headman
personally. She said that the Appellant did not have courtesy for
the headman or herself.
The Appellant did not cross-examine the Respondent and
when asked questions by members of the Tribunal for
clarifications, she said that she only knew that the Appellant had
title deeds when the matter was brought before the Lands
Tribunal. She also said she cannot allow the Appellant to settle
on this piece of land because there are people (her people)
who would like to use that land. John Lupiya 68 years old of 22
David Kaunda Secondary School, Lusaka, a retired building
officer testified on behalf of the Respondent. He said he does
not know the Appellant but knew Mr Mapulanga. He said then
they saw Mr Mapulanga start digging a foundation and he brought
some building materials they stopped him going ahead with any
developments. He said Mr Mapulanga went away in 1982 and
never returned. Mr Bernard Lupiya gave similar eveidence as
that of John Lupiya. At the close of the evidence from both
sides the Tribunal moved to Chongwe for an on the spot
inspection. The inspection was attended by several headmen
and their subjects apart from the respondent and the appellant.
We were able to see the borehole which is currently not being
used. The land in issue is cleared. The Appellant was not able
to show us their beacons. The Appellant was somehow
uncooperative maybe he was overwhelmed by the presence of
so many village headmen with their subjects on the side of the
respondent. We now have to consider whether this particular
piece of land, on Farm No. 1671/m Chongwe is traditional land
over which the respondent could have control. Admittedly this
land is in the midst of villages, surrounded, by villages and
ordinarily should fall under the jurisdiction of a traditional ruler.
In this case Senior Chieftainess Nkomeshya and village
Headman Libuko. On the 4th of May, 1975. Mr Raphael Joseph
Mapulanga then District Governor for Feira applied to the

commissioner of lands for a piece of land in Lusaka near
Chongwe Headquarters. This piece of land would be for a
residential house and small scale farming. The Commissioner
of Lands on 1st July, 1975 wrote to the District Secretary, P.O.
Box 210, Lusaka informing him that Mr Mapulanga had applied
for a piece of land shown on a sketch plan which was sent to
him and wanted to know if he had any objection to the intended
developments by the appellant. By copy of this letter, senior
chieftainess Nkomeshya was invited to give her views on this
matter. The letter was copied to senior chieftainess Nkomeshya
and the Secretary of Rufusa Rural Council (which is now
Chongwe District Council) Rufunsa Rural Council responded
by letter dated 17th February, 1976 stating that the Council did
not have any objection to Mr Mapulanga occupying the site
indicated on the plan. Thc Acting District Secretary Lusaka
Rural by a letter dated 18 th March, 1976 wrote to the
Commissioner of Lands advising that he did not have any
objection for Mr Mapulanga to have a residential small on the
proposed site all these letters do not have any reference to the
particular plot but it looks very obvious that, all the parties must
have had a very clear understanding number of the property
they were talking about through the sketch plan which Mr
Mapulanga referred in his application to the Commissioner of
Lands. Although the Respondent was asked for her views by
the Commissioner of Lands, we have no evidence that any
communication was sent to the Commissioner of Lands. In the
absence of any objection a formal offer of this piece of land
was sent to Mr Mapulanga on 19th July, 1996 by the
Commissioner of Lands and Mr Mapulanga was advised to
pay a total of K314-60. Although we have no evidence of this
amount having been paid we will not be far from being right
and assuming that this amount must have been paid and that is
why a 99-year lease was granted to Mr Mapulanga. The lease
is dated 30th April, 1975.
Once title deeds were issued to Mr Mapulanga the land
issue ceased to be traditional land and the Respondent ceased
have any control over it. If the respondent had responded to the
Commssioner of Lands letter requiring an objection to Mr
Mapulanga being given that land because it was a customary
land the story would have been very different today and this
case would not have come before us. Upon Mr Mapulanga
acquiring title to the land he was free to sell it to anybody he
chooses and in our view, there was no obligation on the part of
the appellant to have sought authority from Village Headman
Libuko or indeed the Respondent.
We sympathise with the Respondent that this land has been
taken away from her people and her sentiments are very much
appreciated by us. However in the absence of any irregularity
in the way the land was aquired we are unable to be of any
assistance to the Respondent. We feel it is rather late to protest
over title to this piece of land... .
Generally, the right to acquire interests or rights in land under

customary tenure in Zambia vests in individuals by reason of
their being legitimate residents in a given area within which they
exercise such rights. The rights to acquire land might arise from
the fact of being born in a particular area. The right may also
arise from the fact of being accepted as a resident who has
moved into the area from somewhere else. The right to acquire
land under customary tenure can be seen as inhering in
membership of a community or alternatively in a territorial
dimension of residence in an area.37 In the Makwati case, the
appellant attributed the respondent Senior Chieftainess’ stance
on the grounds of tribal and political affiliation. If the land involved
was traditional land (and considering that the Appellant was not
Soli) the only way the appellant was going to acquire land or an
interest in land was by being accepted as a resident who had
moved into the area from somewhere.
Section 10 of the Lands Act provides for the renewal of the
Presidential lease upon expiry. In Chilufya v. Kangunda,38
the Appellant was allocated a property on state lease for a period
of 14 years from 1st January, 1978 and was issued with a
Certificate of Title. Unknown to the Appellant, the respondent
fraudulently obtained a Certificate of title to the same property.
The Respondent sued the Appellant for vacant possession of
the property. The learned trial Judge considered that because
the respondent had been granted a certificate of title, this was
conclusive evidence of title pursuant to section 54 of the Lands
and Deeds Registry Act. Further, the learned trial Judge
considered that the appellant’s lease had expired and that the
appellant was only entitled to compensation in respect of the
unexhausted improvements he effected. In the course of
delivering the Judgment of the Supreme Court, Ngulube, CJ, as
he then was, observed and commented thus:
37
See Johnson Land Commission Report of Government Printer (1967), Lusaka, p. 46
38
(1999) ZR 166 (SC).
A major drawback in the approach adopted below

was that the learned trial judge made a fundamental
mistake in treating a state lease of land which
conferred ownership or proprietorship and title and
which obliged the lessee to develop the land as if it
were an ordinary landlord and tenant lease for a
term certain which then simply expires by effluxion
of time. The lease here did not and could not
terminate automatically and it conferred rights at
expiry under the state’s covenants under the lease
and, above all, by statute: To wit, the appellant had
to get a 99 year lease as of right unless there was
major default. It is unthinkable-since most land was
converted to Leasehold-that at the end of the
various leases, owners of property who have
invested and developed them can come and lose
these at the mercy and whim of officials of the
state. The learned trial Judge made no reference
whatsoever to Section 10 of the Lands Act, Cap.
184, which clearly applied. Section 10 reads:
10 (1) The President shall renew a lease,

upon expiry, for a further term not
exceeding ninety-nine years if he is
satisfied that the lessee had complied with
or observed the terms, conditions or
covenants of the lease and the lease is
not liable to forfeiture.
(2) If the President does not renew a
lease the lessee shall be entitled to
compensation for the improvements
made, on the land in accordance with the
procedure laid down in the Lands
(Acquisition) Act.
We have not forgotten the valiant effort put up by

Mr Matibini who tried to defend the arguments
below that the fourteen years lease simply lapsed
or expired. We still recall his attempt to persuade
us to presume that there must have been the
relevant breach of covenant on the part of the
appellant which enabled the Commissioner of
Lands to exercise his discretion by re-entering and
re-allocating the land. These arguments and
submissions flew in the teeth of the law and the
clear facts. There was in this case a very crude
fraud and the result of the appeal already
announced was inevitable...
(e) Re-entry - Section 13 of the Lands Act of 1995 - Right to

compensation following re-entry - Article 16 of the
Constitution - Protection from deprivation of property -
Lands Tribunal unfettered by the pleadings or
technicalities and is expected to do justice to the parties
after it has concluded its enquiry
Goswami v. Commissioner of Lands [2001] ZR 31
by NGULUBE, CJ, as he then was]
The appellant used to own Stand No. 8492, Lusaka that she
purchased from someone who had also purchased it from another
person. There was a covenant requiring the erection of
developments of not less than Twenty Thousand Kwacha, a
condition long satisfied by the previous owners, as witness the
state’s consent to assign on the various assignments of the
property when the values of the un exhausted improvements
had to be stated and verified. This land was repossessed by the
2nd respondent who served a notice of re-entry for breach of
the covenant to pay ground rent and allegedly for breach of the
development clause. Following the deportation of her husband,
the appellant lived abroad with him and it was not in dispute that
the property was generally abandoned and neglected. As Mr
Kachamba put it in relation to the issue of compensation, to
which we shall be turning in a moment, the buildings there were
in a sorry state. The notice was served on a watchman and
after the re-entry, the land was swiftly allocated to the 1st
respondent and a certificate of title issued to him.
Mr Banda argued that the speed with which the transaction
was done to deprive a citizen of her land and give it in record
time to another person showed there was injustice which the
Lands Tribunal (from whose decision this appeal comes) should
have taken into account to invalidate the re-entry and
repossession. Another ground for invalidation which was urged

upon us was that though it was in order to serve notice of re-
entry on the watchman, who was an adult person found on the
plot, the failure to call him as a witness should have raised doubts
whether there was any proper service. We regarded this ground
to have fallen of its own inanition. The re-entry was without a
doubt effective and these arguments are unsuccessful.
The ground of appeal which had force and unarguable merit
in it concerned the failure by the Tribunal to award
compensation. As the learned State Counsel pointed out, our
Constitution does not countenance the deprivation of property
belonging to anyone without compensation: See Article 16. The
attitude of the 2nd Respondent which appears to have been
accepted by the Tribunal was that as long as the re-entry was
lawful, there would be no need to pay adequate and proper
compensation. This was wrong and Mr Kachamba very properly
conceded in this court that he would not resist an order for the
payment of compensation. Compensation, let it be stressed,
was payable to the dispossessed owner of land whether the re-
entry was for good or for bad cause. The only bone of contention
was the amount of compensation as between the market value
of K35 million deposed to by the appellant’s witness. Mr Kapalu
and the derisory sum of K3 million suggested by the
Government’s witness Mr Sangulube who conceded he did not
take into account the market value of the developments and
who had prepared a report ostensibly to justify the re-entry.
The allegations made to justify the small value placed on the
buildings, the wall, the borehole and tank (excluding the materials
on site) was that the structures were illegal and had no planning
permission. These allegations had no support from the evidence
and flew in the teeth of the Government’s previous conduct
when other previous owners applied for state’s consent to assign.
The 2nd Respondent cannot be estopped by the same office’s
previous conduct and dealings.
The right to compensation was clearly unarguable. We have
not forgotten Mr Mubonda’s submission that compensation which
is not specifically pleaded should not be awarded. The Tribunal
is in fact not one fettered by legalistic formal pleadings or
technicalities and it is expected to do justice to the parties on the
case as found after it has conducted its inquiry. Even the Lands
Tribunal is not exempt from observing the requirements of the
Constitution of the country. That said, the appellant was very
clearly entitled to compensation in the sum of K35 million payable
by the Government. This is the sum which more approximates
the real value of the property and which meets the justice of this
case. Accordingly, the appeal is allowed and judgment is entered
for the appellant in the sum of K35 million as compensation for
the property taken away from her.
In the recent past, most of the re-entries done by the
Commissioner of Lands on (behalf of the President) have been
challenged in both the High Court and the Lands Tribunal mostly
on the ground that the affected lessees were not served with
notices of intention to re-enter. Most of these challenges have
succeeded. The Supreme Court in the case of Kabwe and
Another v. Daka and Others,39 commented and observed thus
on the mode of service of the notice of intention:
The mode of service of the notice of intention to cause a

certificate of re-entry to be entered in the register for a
breach of covenant in the lease, as provided for in section
13 (2) of the Lands Act, is cardinal to the validation of
the subsequent acts of the Commissioner of Lands in
disposing of the land to another person. We say so
because if the notice is properly served, normally by
providing proof that it was by registered post using the
last known address of the lessee from whom the land is
to be taken away, the registered owner will be enabled
to make representations, under the law, to show why he
could not develop the land within the period allowed under
the lease. If the land is eventually taken over because of
being in breach, despite the warnings from the
Commissioner of Lands, the registered owner cannot
successfully challenge the action to deprive him of the
land. On the other had if the notice is not properly served
and there is no evidence to that effect, as was the case
here, there is no way the lessee would know so as to
make meaningful representations. It follows that a
repossession effected in the circumstances where a
lessee is not afforded an opportunity to dialogue with
the Commissioner of Lands, with a view to having an
extension of period in which to develop the land, cannot
be said to be a valid repossession. In our view, the
Commissioner of Lands cannot be justified in making
the land available to another developer.
39
SCZ Judgment No. 5 of 2006, Appeal No. 162 of 2003.
(g) Lands Tribunal - Jurisdiction limited to the settlement of

‘land disputes’ under the Act
Mwangela and Another v. Ndola City Council 2000 (ZR) 131
[The facts of the case appear in the Judgment of the supreme Court
delivered by LEWANIKA, JS, as he then was]
This is an appeal against the decision of the Lands Tribunal on a

question referred to it by the Appellant. The Lands Tribunal
was asked to determine whether it was fair and just for the 2nd
Respondent to assign house No. 9, Mwenda Road, Itawa, Ndola
to the 1st Respondent when the Appellant was entitled to it as
an occupier by virtue of the Ministry of Local Government and
Housing circular dated 2 May 1996 on revised procedures for
the sale of Council houses.
The appellant had also sought the following reliefs:
1. An order to quash the decision of the 2nd respondent to
assign the house in issue to the 1st respondent.
2. An order of mandamus for the 2nd respondent to assign
the house to the appellant.
3. Any other order or relief the Tribunal may deem fit.
…There is one issue on which we wish to comment which did
not arise in the appeal before us but was raised in the proceedings
before the Lands Tribunal and this relates to the jurisdiction of
the Lands Tribunal. The Lands Tribunal is a creature of statute
having been established by section 20 (1) of the Lands Act, Cap
184 of the Laws of Zambia. Part II of the Act which contains
sections 3 to 15 deals with the administration of land in Zambia.
Section 15 of the Act provides as follows:
(1) any person aggrieved with a direction or

decision of a person in authority may apply to
the Lands Tribunal for determination.
(2) In this section ‘person in authority’ means the
President, the Minister or the Registrar.
The Jurisdiction of the Lands Tribunal is contained in section 22

of the Act which provides as follows:
22. The Tribunal shall have jurisdiction to-

(a) Inquire into make awards and decisions in any
dispute relating to land under this Act;
(b) to inquire into and make awards and decisions
relating to any dispute of compensation to be
paid under this Act;
(c) generally to inquire and adjudicate upon any
matter affecting the land rights and obligations,
under this Act, of any person or the
Government; and
(d) to perform such acts carry out such duties as
may be prescribed under this Act or any other
written law.
In our considered opinion a reading of sections 15 to 22 of the

Lands Act shows quite clearly that the jurisdiction of the Lands
Tribunal is limited to the settlement of “land disputes” under the
Act and is not an alternative forum to the High Court where
parties can go to even for the issuance of prerogative writs
such as mandamus. In these proceedings the appellant was
seeking to impugn a Certificate of Title issued to the 1st
respondent and under the Lands and Deeds Registry Act, Cap
185 of the Laws only the High Court has jurisdiction to entertain
such proceedings. As we have stated earlier on, although the
point was not taken up before us, the Lands Tribunal had no
jurisdiction to entertain these proceedings.
The principle established by the Supreme Court in relation to

the Lands Tribunal’s powers to order cancellation of title deeds
is that the tribunal had no jurisdiction or powers to do so under
the Lands Act and that it could only recommend to the
Commissioner of lands as to what to do with a certificate of title
in issue and not to order cancellation of the same. This principle
was reiterated by the Supreme Court in a number of cases or
appeals emanating from the Lands Tribunal. In Attorney
General, Ministry of Works and Supply v. Frazer and
Another,40 Sakala, JS (as he then was) in delivering the judgment
of the Supreme Court observed and commented thus in relation
to the powers of the Lands Tribunal to order cancellation of title
deeds:
…The question of the Lands Tribunal’s jurisdiction

to cancel Certificates of Title for any reason has
already been settled by this court in a number of
cases emanating from the Lands Tribunal. One of
40
(2001) ZR 87.
the recent cases is that of Adetayo Oduyeni and

Two Others v. Atlantic Investments Ltd.41 The
appeal in that case was against a decision of the
Lands Tribunal ordering that a Certificate of Title
deeds be cancelled. We said in that case: Our short
answer to the submissions is that the Lands Tribunal
has no jurisdiction to order cancellation of
Certificate of Title in land matters. In terms of the
Lands and Deeds Registry Act CAP 185, the
jurisdiction to order cancellation of Certificate of
Title Deeds lies with the High Court and not the
Lands Tribunal. The Lands Tribunal can only
recommend cancellation. This is what in effect we
said in Mwangela v. Nsokoshi and Ndola City
Council. Although the Lands Tribunal was correct
in doing substantial Justice, their power is limited
to recommending to the Commissioner of Lands
as to what to do with a Certificate of Title Deeds
in issue and not to order cancellation of the same.42
In a decision delivered by the Supreme Court in October 2005,

the Court failed to follow the principle established by itself and
repeated in several cases that the power of the Lands Tribunal
was limited to recommending to the Commissioner of Lands
(sometimes the Registrar of Lands and Deeds) as to what to do
with a Certificate of Title in issue and not to order cancellation
of the same. This was in the case of Diocese of Monze v.
Mazabuka District Council and Others.43 In this case the
Supreme Court stated that the Lands Tribunal has no jurisdiction
to entertain a complaint over land if either party to the complaint
has title deeds. The Supreme Court went on to state that the
Lands Tribunal should come up with a deliberate policy not to
accept any complaint in which a Certificate of Title was involved.
The lack of consistency by the highest court of the land, as
exhibited by this decision, is a matter of concern. Zambia being
a common law Jurisdiction follows the principle of binding
precedents or stare decisis i.e., the ‘sacred principle’ of English
law by which precedents are authoritative and binding and must
be followed by lower courts. One often cited advantage of the
system of stare decisis is that it leads to consistency and
41
42
Pp. 91-92
43
SCZ Judgment No. 16 of 2005, Appeal No. 115 of 2002.
predictability of court decisions. The decision in Diocese of
Monze does not lead to predictability and consistency in court
decisions.
As a result of this decision the Lands Tribunal stopped
accepting any complaint in which a certificate of title was issued.
The Lands Tribunal went further by stopping to adjudicate on
cases involving title deeds that were already in the process of
being heard. The Diocese of Monze case is reproduced
hereunder.
Diocese of Monze v. Mazabuka District Council and 3 Others [SCZ

Judgment No. 16 of 2005 - Appeal No. 115 of 2002
Court delivered by SILOMBA, JS]
This appeal is against the judgment of the Lands Tribunal

delivered on the 12th day of April, 2000 in which the Tribunal
ordered the re-planning of Farm No. 576, Nega Nega in
Mazabuka District. The evidence before the Lands Tribunal
was that the appellant was the holder of a certificate of title
over subdivision A of Farm No. 576, in extent 40 hectares.
The appellant acquired the piece of land sometime in 1988
through the 1st respondent who recommended the application to
the 3rd respondent for the issuance of a title deed. According to
the evidence of Mr Mostead Mugala, the land was earmarked
for the development of Nega Nega Youth Project under the
auspices of the appellant. The beneficiaries were the youths of
the Diocese and the courses to be offered to the youths were
leather tanning, tailoring, agricultural production and other general
activities in agriculture and horticulture.
As the appellant began to develop the land, the 2nd respondent,
who had initially supported the application of the appellant as
Councilor for the area, as well as, Chairman of the Plans and
Development Committee of the 1st respondent that approved
the allocation of land to the appellant, became interested in the
land. He told the appellant that he had been given 39 hectares
of the same land. The witness told the Lands Tribunal that they
could not believe him as they had title to the land and had already
effected improvements on it.
As if that was not enough, the 2nd respondent moved on the
land sometime in 1992 with a certificate of title over subdivision
B of Farm No. 576 and started constructing his house.
Apparently he had acquired a ninety-nine year lease to the same
land as opposed to the fourteen-year lease held by the appellant.
It was on that basis that the appellant complained to the Lands

Tribunal. There was no evidence adduced before the Lands
Tribunal by the 2nd respondent. However the record of appeal
shows that the 2nd respondent personally cross examined all the
witnesses of the appellant. The argument of the appellant before
the Lands Tribunal was that it was the registered owner of
subdivision A of Farm No. 576. That being the position, the
appellant did not accept the decision of the 1st respondent to
give a portion of its land, late numbered as subdivision B of
subdivision A and leaving the appellant with only one hectare.
The Lands Tribunal considered the evidence before it and as
we have already pointed out in this judgment, the Tribunal ordered
the re-planning of the farm. It was further ordered that once
the farm was re-planned a portion of it, not measuring more
than 5 hectares in extent, should be allocated to the second
respondent to accommodate his improvements while the
remainder be retained by the appellant.
There were three grounds of appeal that were filed under
the memorandum of appeal. At the time the appeal was argued,
Counsel for the appellant only indicated two grounds of appeal
in her heads of argument. We shall not reproduce the two
grounds of appeal in this judgment for the reasons that will soon
follow.
It was the general consensus of the advocates representing
the parties herein that the Lands Tribunal has no jurisdiction to
entertain the complaint that entailed making an order for the
cancellation of a certificate of title, by way of rectification of
the register, because the power to do so was vested in the High
Court under section 11(2) of the Lands and Deeds Registry
Act, Chapter 185 of the Laws.
In her response to the concern raised by the court on the
issue of jurisdiction of the Lands Tribunal, Counsel for the
appellant admitted that she went to a wrong forum and that by
accepting to deal with the complaint, the Tribunal acted in excess
of its jurisdiction. The response of Counsel for the 2nd respondent
was simply to concede that the lack of jurisdiction could not be
cured on appeal, thereby rendering the proceedings in the Lands
Tribunal a nullity. He was of the view that if the appellant were
to get the remedies it was seeking, it was incumbent upon it to
commence an appropriate action in the High Court.
Even if the Tribunal did not make any specific order to counsel
the certificate of titles, the order to re-plan the farm
consequentially meant , in our considered view, that the existing
title deeds held by both the appellant and the 2nd respondent
were to be cancelled to allow for the re-numbering and re-
surveying of two new portions that were to be created as a
result of the re-planning exercise before fresh title deeds could
be issued.
We have said in many of our decisions that the Lands
Tribunal has no jurisdiction to entertain a complaint over land if
either party to the complaint has title; the only court that has
legal authority to order the Chief Registrar of Lands and Deeds
to rectify the register and cancel a certificate of title is the High
Court. However the several opinions of this court were never
heeded by the previous membership of the Lands Tribunal as
this case will clearly show. From the appeals we have had so
far, it seems that the trend is continuing even under the current
membership.
Until the Lands and Deeds Registry Act is amended, if ever
it will be amended, to shift the power to cancel a title deed to the
Lands Tribunal from the High Court, the former has no choice
but to come up with a deliberate policy not to accept any
complaint in which a certificate of title is involved. That way,
the Lands Tribunal will be seen to be genuinely involved in the
dispensation of quality justice, which will not only reduce litigation
costs, but also enhance accessibility to justice.
With these comments, we declare the proceedings in the
Lands Tribunal a nullity for lack of jurisdiction. Consequently
we decline to entertain the appeal because it is incompetent or
misconceived. The issue of compensation for the structures
put by the 2nd respondent, as canvassed by counsel, cannot be
resolved on appeal because the proceedings in the Lands Tribunal
were a nullity. We think that when a fresh action is instituted in
the High Court, this and other issues can be raised before that
court.
The Lands Tribunal was established under the Lands Act to

make provision for the dispensation of Justice and efficient
resolution of disputes as well was a way of reducing the cost of
litigation in land matters. The jurisdiction of the Lands Tribunal
is, however, very limited to the extent that the tribunal has not
been effective in its operation. The Diocese of Monze decision
effectively undermined the credibility and efficacy of the Lands
Tribunal. There is urgent need to strengthen the Tribunal by
widening its jurisdiction. It is proposed that the Tribunal should
have the same jurisdiction as that enjoyed by the High Court in

land matters including the powers or jurisdiction to order
cancellation of title deeds. The Tribunal should have jurisdiction
to order the Chief Registrar of Lands and Deeds to rectify the
register and cancel a Certificate of title. Currently only the High
Court is empowered to do so under the provisions of the Lands
and Deeds Registry Act. There is need to amend the Lands
and Deeds Registry Act so that the Lands Tribunal can have
concurrent jurisdiction as that enjoyed by the High Court under
the Lands and Deeds Registry Act.
The jurisdiction of the Lands Tribunal should also be widened
to cover all land disputes not only those emanating under the
1995 Lands Act, but also to cover disputes arising under the
Housing (Statutory and Improvement Areas) Act. At the
operational level there is need to decentralise the Lands Tribunal.
Currently the operations of the Tribunal are centralised in Lusaka.
In terms of appointment of the Chairman and his Deputy, it is
proposed that persons occupying these positions should be
nominated by the Judicial Services Commission and appointed
by the President subject to ratification by National Assembly.
Further, these persons should enjoy security of tenure during
the duration of their appointment as that enjoyed by Judges. If
these suggestions, including improved budgetary allocation, are
implemented the Lands Tribunal, borrowing the words of Mr
Justice Silomba in the Diocese of Monze case, ‘will be seen to
be genuinely involved in the dispensation of quality justice, which
will not only reduce litigation cost, but also enhance accessibility
to Justice.’
13.4 PROPOSED CONSTITUTIONAL ENACTMENTS

RELATING TO LAND: THE MUNG’OMBA DRAFT
CONSTITUTION
13.4.1 Introduction
On 17 April 2003 President Mwanawasa in exercise of the

powers under the Inquiries Act,44 appointed a Commission,
chaired by one Mr Willa Mung’omba, to review the Constitution
of Zambia. The Constitution Review Commission had thirty
one terms of references.45 There were no explicit terms of
44
45
See Statutory Instrument No. 40 of 2003.
reference relating to land. However there were three terms of
reference which had a bearing on land. These were terms of
reference numbers 5, 16 and 30.
Term of reference Number 5 mandated the Commission to:
Examine and recommend the elimination of

provisions which are perceived to be
discriminatory in the Constitution.
Examine and recommend to what extent issues

of gender equality should be addressed in the
Zambian Constitution: and
Examine and recommend on any matter that is

connected with or incidental to the foregoing
terms of reference.
The Commission considered these terms of reference as giving

it the mandate to gather people’s views on land. 46 The
Commission submitted its Interim Report and Draft Constitution
to the President on 22 June 2005. The Government issued its
reaction to the Constitution Review Commission Draft
Constitution on 31 October 2005.47 The final draft was submitted
in December 2005.
The Commission received 522 submissions relating to the
subject matter of land.48 From the different concerns raised by
the petitioners the Commission felt that the constitution should
be explicit on the subject of land.49 The Commission however,
observed that constitutional provisions relating to land needed
not to be extensive because the subject would be better provided
in the appropriate legislation on land matters.50 The following
were some of the submissions and recommendations of the
Commission.
46
See Chapter 24 (dealing with land) of the Interim Report of the CRC at p. 762. CRC 29th June 2005.
47
See Government’s reaction to the CRC Draft Constitution, 31 October 2005, Republic of Zambia.
48
See p. 768 of the Interim Report of the CRC.
49
Ibid.
50
Ibid.
13.4.2 Vesting of Title51
The Commission received different views on the issue or principle

of vesting of title. Some petitioners submitted that land under
traditional authority should be vested in chiefs. Some petitioners
on the other hand felt that all land should be vested in the chiefs
on behalf of the people of Zambia. A few petitioners submitted
that traditional rulers should have no authority over land. The
House of Chiefs, on the other hand, submitted that State land
should vest in the President while customary land should vest in
chiefs on behalf of their subjects.
The Commission noted that the majority of petitioners on the
subject wanted land under traditional Authority to be vested in
the chiefs. The Commission however felt that the demand for
land under customary tenure to be vested in chiefs was ‘partly
inspired by the misconception that the vesting of all land in
Zambia in the President entails that the President owns the
land in his right and not for or on behalf of the people.’
The Commission felt that the Constitution should address the
subject of vesting of land. The Commission felt that all land in
Zambia should continue to be vested in the President for purposes
of administration and regulation. The Commission further noted
that in the vesting of all land in the President it should be added
in the Constitution that this vesting was ‘for the use or common
benefit direct or indirect of the people of Zambia’. According
to the Commission this constituted ‘an assurance and
guarantee that there will be no abuse in the management,
use and disposition of land to the detriment of the people of
Zambia’.
The Commission’s recommendation on the issue of vesting
was that the Constitution should explicitly provide that:52
(a) All land in Zambia belongs to the citizens of Zambia
and shall be vested in the President on behalf of the
citizens for purposes of administration and regulation,
for the use or common benefit, direct or indirect of
the citizens of Zambia; and
(b) In the regulation and administration of land, local
authorities and Chiefs should have a part to play within
the context of devolution of power.
51
This aspect is dealt with at pp. 768 - 770 of the Interim Report of the Constitution Review Commission.
52
Ibid., at p. 770.
13.4.3 Access, Acquisition, Hectarage and Ownership53
On the subject of access to, acquisition and ownership of land

the Commission noted that the petitioners addressed a range of
issues. The majority of petitioners wanted citizens to have the
right of access to land and the right to acquire and own land.
The Commission noted that many petitioners were not in favour
of non-Zambians owning land. The Commission further noted
that the problem of accessing and owning land was further
compounded by the fact that the process was highly centralised.
This made the process of acquiring land costly in terms of time,
financial and other resources.
The Commission considered that ‘in view of the importance
of land to citizens’ livelihoods the right of access to and
right to acquire land should be made explicit in the
Constitution and include gender equity considerations.54’
On the issue or aspect of non-Zambians owning land, the
Commission first noted that under the Lands Act, foreign
individuals or entities could own land and in case of a company
or a co-operative society it was a requirement that at least 75
per cent of the issued shares should be owned by Zambians.
The Commission observed that ‘some foreign investors have
taken advantage of the weakness in the Act by using
Zambians as ‘fronts’ for the sole purposes of owning and
obtaining title to land.’55 The Commission was of the view
that this practice deprived Zambian citizens of the opportunity
to own land and posed, the danger that ‘vast tracts of land will
gradually be lost to non-Zambians.’
The Commission observed that there was no legal restriction
on the number of hectarage that a person could acquire. The
Commission was of the view that the amount of land a person
should be entitled to acquire can be regulated within the
framework of the existing law. The Commission was further of
the view that the law should make a distinction between citizens
and non-Zambians in their respective entitlement to land.
On conversion of customary tenure, the Commission was of
the view that the Act should make provision that land held under
leasehold tenure which was previously held under customary
tenure shall convert to customary tenure on re-entry, voluntary
surrender or compulsory acquisition.
53
See pp. 770 - 777 of the Interim Report of the Constitution Review Commission.
54
Ibid., at p. 773.
55
Ibid.
On the issue of assigning or subdividing undeveloped land,

the commission was of the view that although land has value
there should be legislation to regulate against speculation and
subdivision of undeveloped land.56
The Commission’s recommendations were that:
(a) Citizens shall have the right of access to and right to
acquire land without any impediment, all conditions of
acquisition having been met and, at the expiry of a lease,
the lease shall be renewed as a matter of right;
(b) Women shall have the right of access to and the right to
own and acquire property; and
(c) The Constitution shall guarantee to all Zambians the
right to communal use and access to islands, river
frontages and lakeshores and these shall not be sold,
leased or fenced off for private use.
With respect to non-Zambians acquiring land in Zambia, the
Constitution should explicitly state that these shall be entitled as
follows:
(a) An investor within the meaning of investment laws of
the country;
(b) A company incorporated in Zambia by non-Zambians
of which 75 per cent or more of its shares are owned
by Zambians;
(c) A non-Zambian statutory corporation created under an
Act of Parliament;
(d) A non-Zambian registered co-operative society with
less than 25 per cent of its membership being non-
Zambian;
(d) A non-Zambian body registered under the Land
(Perpetual Succession) Act which is non-profit making,
charitable, religious, educational or philanthropic, and
approved by the Minister responsible for lands;
(e) Where the interest or right is being inherited or being
transferred through survivorship or operation of law to
a non-Zambian;
(f) A non-Zambian commercial bank registered under the
Laws of Zambia; or
(g) A non-Zambian granted a concession or right under the
Zambia Wildlife Act, No. 12 of 1998.
56
Ibid., at pp. 775 – 776.
The Commission further recommended that:
(a) Individual title to land, whether in State land or customary
tenure, should be made available through appropriate
legislation. In customary tenure, there should be included
in the legislation that the Local Authority and Chief can
withhold consent for a good cause; and
(b) The amount of land to be alienated in individual cases
should be left to the appropriate legislation and the
existing regulation under the leasehold system.
In relation to conversion of tenure, the Commission
recommended that the Lands Act should make provision that
land held under leasehold tenure, which was previously held
under customary tenure, shall revert to customary tenure on re-
entry, voluntary surrender or compulsory acquisition.
The Commission further recommended that the Lands Act
should make provision that:
(a) If land under leasehold tenure is not developed, it should
be repossessed by and revert to the State and if the
leasehold was originally customary tenure, it should
revert to customary tenure.
13.4.4 Duration of Tenure57
On the subject of duration of tenure, the majority of the

petitioners were of the view that the period of leasehold should
be reduced from the current niney-nine years, while a few
wanted the duration to remain unchanged. Those who favoured
the idea of reducing the duration had argued that this would
make it easy to repossess and re-distribute undeveloped land.
The Commission was of the view that ‘reducing the duration
of leasehold tenure would be an unnecessary impediment
on security of tenure. Leasehold tenure should remain at 99
years, as this gives adequate time to the lessee and
subsequent generations to develop and utilize the land.’
The Commission further noted that repossession and
redistribution of undeveloped land could effectively be done
through regulatory measures within the existing laws and the
leasehold tenure system. The Commission’s recommendations
on the duration of tenure were that:58
57
Ibid., at pp. 777 - 778.
58
Ibid., 778.
(a) Both existing tenure systems should be allowed to evolve

and develop into a system that would provide better
security and access to land for the majority of Zambians;
and
(b) Leasehold of land should remain 99 years in order to
allow Zambians optimum utilisation of their land, but
repossession and re-entry of undeveloped land should
be left to the appropriate legislation and the existing
regulations under the leasehold system.
Office of the Commissioner of Lands59
The Commission observed that land was of vital importance

and that there was need for accountability and transparency in
its management. The Commission noted that the current status
was that the President had delegated the day to day
administration of land matters in the Republic to the
Commissioner of Lands. The Commission further noted that
the Commissioner of Lands has powers to make grants and
dispositions of land to any person, subject, to special or general
directions of the Minister responsible for land. The Commission
observed that apart from Statutory Instrument No. 7 of 1964
and Circular No. 1 of 1985, there was no statute defining the
authority, jurisdiction and powers of the Commissioner of Lands.
The Commission was of the view that the Commissioner of
Lands should not be responsible for approval and allocation of
land because ‘this is too vast a function to be discharged by
an individual.’ After making references to the Constitutions
of Uganda and Ghana, which both establish a Lands
Commission, the Commission was of the view that while still
retaining the office of Commissioner of Lands, a Lands
Commission should be established by the Constitution. The
Commission’s recommendations were that the Constitution
Should:
(a) Establish a Lands Commission.
(b) Provide that functions of the Lands Commission should
include to hold, alienate and manage any land in Zambia
in accordance with the provisions of the Constitution
and other laws, including regular review of the status of
all land leased to Zambians and non-Zambians, and to
carry out such other functions as may be prescribed by
an Act of Parliament.
59
Ibid., 778 - 781.
(c) State that the Lands Commission shall comprise the
Commissioner of Lands and five members to be selected
from various institutions, including the Government.
(d) Provide that members of the Commission shall be
appointed by the President, subject to ratification by the
National Assembly, for a non-renewable term of three
years.
(e) Provide that members of the Lands Commission may
only be removed from Office for inability to perform
the functions of the Office arising from infirmity of body
or mind, or for incompetence or misconduct.
(f) Re-establish the Office of Commissioner of Lands and
provide that the Commissioner shall be appointed by
the President and ratified by parliament; and
(g) The Office of the Commissioner of Lands shall carry
out the functions of the Office under the supervision of
the Lands Commission.
13.4.5 Lands Tribunal: Composition and Jurisdiction
On the Lands Tribunal, the Commission was of the view that

the Tribunal should be strengthened in order to enhance its
effectiveness in its operations. The Commission’s
recommendations were that:
(a) The jurisdiction of the Lands Tribunal should be widened
to cover all land disputes under the Lands Act and those
arising under the Housing (Statutory and Improvement
Areas) Act; and
(b) The Lands Tribunal should be decentralised.
Most of the recommendations in the Interim Report of the
Commission were finally incorporated under the draft
Constitution. 60 Government in its reaction accepted some
recommendations as incorporated under the draft Constitution,
though it was generally of the view that most provisions should
be provided for under Acts of Parliament and not under the
Constitution. Government outrightly refused to accept the
recommendation relating to the creation of the National Lands
Board and those relating to the office of Commissioner of Lands.
Following the expiry of the period given for public reaction to
the draft Constitution, the Commission finally came up with the
60
See the draft Constitution of the Republic of Zambia. Secretariat, CRC Lusaka, 29 June 2005. See Part XIX of
the draft Constitution entitled ‘Land and Property’.
‘final’ draft Constitution. 61 Most, if not all of the

recommendations as incorporated in the first draft Constitution
of 29 June 2005, including those which Government had rejected
in its reaction to the Commission Interim report, were
incorporated in the ‘final’ draft Constitution.62
The proposed Constitutional provisions relating to land which
fall under part XIX of the final draft Constitution (apart from
article 65 which falls under the proposed bill of rights) entitled
‘Land and Property’ are briefly discussed below.
Article 65, which falls under the proposed bill of rights,
provides for the right of individuals to access, acquire and own
land and other property either individually or in association with
others. The article also provides for the protection against
deprivation of property by the state. To a large extent this article
is a re-enactment of article 16 of the current Constitution, which
provides for protection from deprivation of property.63 Article
65 of the final draft Constitution provides that:
(1) Every person has a right to access, acquire

and own land and other property either
individually or in association with others.
(2) The State shall not deprive a person of
property of any description or of any interest
in or right over property, except under an
Act of Parliament.
(3) Legislation shall not authorise deprivation
of any interest in or right over property of
any description, except-
(a) where deprivation of any interest in
or right over property is justifiable
balancing-
(i) the public benefit; and
(ii) hardship that may result to any
person who has an interest in or
right over the property;
(b) where the legislation specifies the
consequence for non-compliance
with the law;
(c) where a property consists of a licence
or permit; and
(d) to the extent permitted under this
Constitution.
61
Draft Constitution of the Republic of Zambia, the Secretariat, CRC, Lusaka, 29th December, 2005. Part XIX
entitled Land and Property.
62
See draft Constitution of the Republic of Zambia, 29th December, 2005 ‘Land and Property’, articles 327 - 338.
63
The article is dealt with under chapter 14 of this book dealing with compulsory acquisition of property in
Zambia.
(4) Subject to this Constitution, prompt payment
of full and fair compensation shall be made
prior to acquiring, assuming occupation or
possession of any property, as provided
under an Act of Parliament.
(5) Every owner of -
(a) a leasehold interest in land has the
right to be issued a certificate of title
setting out that interest and, at the
expiry of the lease, to a renewal of
the lease; and
(b) any other right or interest in land has
the right to register that right or
interest.
(6) The rights recognised and protected under
this Article do not apply to any property that
has been unlawfully acquired.
Article 327 of the proposed Constitution provides for the basis

of land policy of Zambia. The article provides that:
The land policy of Zambia shall ensure –

(a) equitable access to land and associated
resources;
(b) equitable access and ownership of land by
women;
(c) security of land rights for land holders;
(d) sustainable and productive management of
land resources;
(e) transparent and cost effective
administration of land;
(f) sound conservation and protection of
ecologically sensitive areas;
(g) cost effective and efficient settlement of
land disputes; and that river frontages,
islands and lakeshores are not leased,
fenced or sold.
Article 328 of the proposed Constitution provides for

classification of land in Zambia. The article provides that:
All land in Zambia shall be classified as customary

land, State land or such other classification as
may be provided by or under an Act of
Parliament, and shall be delimitated in
accordance with an Act of Parliament.
Under the 1995 Lands Act, land is classified either to be

customary area (formerly Reserves and Trust lands) or state
land which is defined under the Act to mean ‘land which is not
situated in a customary area.’
Article 329 provides the constituents of state land. The article
provides that:
(1) State land is –

(a) land held by any person under leasehold
tenure;
(b) land which at the commencement of this
Constitution was unalienated State land as
defined by an Act of Parliament;
(c) land lawfully held, used or occupied by any
government ministry, department, agency or
local authority;
(d) land on or under which minerals are found
as specified under law;
(e) land in respect of which no heir can by
ordinary legal process be identified;
(f) land occupied by, or through which, any
natural resource passes including gazetted
or declared national forests, game reserves
and water catchment areas, rivers and other
natural flowing water resources, national
parks, animal sanctuaries and specially
protected areas;
(g) any land not classified as customary land
under this Constitution; and
(h) any other land declared as State land by an
Act of Parliament.
(2) State land shall not be alienated or otherwise used
except in terms of legislation specifying the nature
and terms of that alienation or use.
The constituents of customery land are provided for under article

330 of the proposed Constitution. The article provides that:
(1) Customary land is land held by communities

identified on the basis of tribe, residence or
community of interest.
(2) For the purposes of clause (1), customary land
includes –
(a) land customarily held, managed or used by
specific communities as community forests,
grazing areas or shrines;
(b) land lawfully alienated to a specific
community by any process of law;
(c) ancestral lands traditionally occupied by an
ethnic community; and
(d) any other land declared to be customary land
by an Act of Parliament.
(3) Customary land shall not be alienated or
otherwise used until the approval of the chief
and local authority in whose area the land is
situated has first been obtained and as may be
provided by or under an Act of Parliament.
(4) An approval under clause (3), shall not be
unreasonably withheld.
Article 331 of the proposed Constitution provides for the vesting

of land in the President in trust and on behalf of the people of
Zambia. The article provides that:
(1) Land in Zambia is vested in the President and is

held by the President in trust for and on behalf
of the people of Zambia.
(2) All land in Zambia shall be administered and
controlled for the use or common benefit, direct
or indirect, of the people of Zambia.
(3) Subject to clause (3), the President may, through
the Lands Commission, chiefs or local authorities,
alienate land to citizens or to non-citizens, as
provided by this Constitution and by or under an
Act of Parliament.
(4) Subject to article 330 (3), land situated in a district
shall be administered by the local authority in
that district.
The land tenure of Zambia is provided for under article 332

which provides that:
(1) Land in Zambia shall be alienated and held on

the basis of customary, leasehold or other tenure,
as provided by this Constitution or by or under
(2) Subject to clause (1), State land may be held on
a lease of ninety- nine years or such lesser
years as may be provided by legislation for

different categories of State land.
(3) A person who is not a citizen shall only be entitled
to lease land for a restricted period of time, as
provided by an Act of Parliament.
(4) Parliament shall enact legislation to provide for
the categories of non-citizens that may hold land
and the conditions under which they may do so.
Article 333 of the proposed Constitution provides for the

regulation of land use and development of property. The article
provides that:
(1) The State is empowered to regulate the use of

any land, Interest or right in land in the interest
of defence, public safety, public order, public
morality, public health, land use planning or the
development or utilisation of property.
(2) The State shall encourage and provide a
conducive social, economic, political and legal
environment for the creation, development and
management of property.
(3) Parliament shall enact legislation ensuring that
major investments in land benefit local
communities and their economy.
The office of the Commissioner of Lands is provided for under

Article 334 of the proposed Constitution. The article provides
that:
(1) The office of Commissioner of Lands is a public

office and the Commissioner of Lands shall be
appointed by the President, subject to ratification
by the National Assembly.
(2) The Commissioner of Lands shall be the chief
administrator of the Lands Commission and shall
perform the functions of office under the
supervision of the Lands Commission.
(3) The term of office of the Commissioner of Lands
shall be five years, subject to renewal or until
the person attains retirement age as specified
by an Act of Parliament.
Article 335 of the proposed constitution provides for the
establishment of the Lands Commission. The article provides
that:
(1) There is hereby established a Lands Commission

which shall consist of the Commissioner of Lands
and four other part-time members appointed by
the President, subject to ratification by the
National Assembly.
(2) Parliament shall enact legislation to provide for
the Lands Commission, its financial resources
and financial management, procedures,
administration, appointments, qualifications,
promotions, transfer, retirement and discipline
of staff, including the Commissioner of Lands,
and generally for the functioning of the
Commission.
(3) The Lands Commission shall establish offices
in every province.
(4) The expenses of the Lands Commission,
including the emoluments of the staff of the
Commission, shall be a charge on the
Consolidated Fund.
Article 336 provides for the tenure of office of the members of

the proposed Lands Commission. The article provides that:
(1) A member of the Lands Commission, except

the Commissioner of Lands, shall hold office for
a term of three years, subject to renewal for
only one further term of three years.
(2) Parliament shall enact legislation providing for
the removal from office of a member of the
Lands Commission.
The Functions of the proposed Lands Commission are provided

for under article 337 of the proposed constitution. The article
provides that:
The functions of the Lands Commission shall include

the following:
(a) administer, manage and alienate land on behalf
of the President;
(b) formulate and recommend to the Government
a national lands policy;
(c) advise the Government and local authorities on

a policy framework for the development of
selected areas of Zambia and to ensure that
the development of customary land is in
accordance with the development plan for the
area;
(d) advise the Government on, and assist in the
execution of, a comprehensive programme for
the registration of leasehold title in land
throughout Zambia;
(e) conduct research related to land and natural
resource use and make recommendations to
appropriate authorities;
(f) facilitate the participation of communities in the
formulation of land policies;
(g) monitor and have oversight responsibilities over
land use planning throughout the country; and
(h) any other function provided by or under an Act
of Parliament.
Article 338 of the proposed Constitution requires Parliament to

enact certain legislation. The Article provides that:
Parliament shall enact legislation to –

(a) revise, consolidate and rationalise existing laws
relating to land;
(b) prohibit speculation in land;
(c) revise sectoral land use law in accordance with
national land policy;
(d) regulate the manner in which any land may be
converted from one classification or category
to another;
(e) protect, conserve and provide equitable access
to all State land;
(f) enable the settlement of landless people
including the rehabilitation of spontaneous
settlements of rural and urban communities; and
(g) prescribe minimum and maximum land holding
acreage in arable areas.
13.5 Summary of Chapter Thirteen By way of a General
Commentary on the 1995 Lands Act and The Proposed
Constitutional Provisions Relating to Land
This chapter has examined and considered the land reforms

instituted by the MMD Government in 1995 as well as the
proposed constitutional provisions relating to land under the
Mungomba Final Draft Constitution.
The political changes that swept through the country in 1991
inevitably led to the changes in the economic policies. Whilst
the UNIP Government essentially pursued socialist oriented
economic policies, the MMD Government which came to power
after the 1991 elections, pursued liberal economic policies. A
private sector driven economy where both local and foreign
investors would participate was seen as the engine of economic
growth.
Under the repealed 1975 Act, the land market was a controlled
or regulated one. The economic liberalisation pursued by the
MMD Government, also entailed the liberalisation of the land
market or less interference by the State in the land market. This
in turn required that all the obstacles to a free land market
embedded under the 1975 Act had to be dropped. These
obstacles, as pointed out in the preceding chapter, included the
notion that bare land had no exchange value, severe restrictions
on alienation of land to non-Zambians, and fixing of maximum
consideration for various transactions or dealings in land.
Before the enactment of the 1995 Lands Act, the issues of
land administration and control were governed or regulated under
a host of statutes and orders. These were the 1975 Lands Act,
the Zambia (State lands and Reserves) Orders, 1928 to 1964,
the Zambia (Trust land) Orders, 1947 to 1964, the Zambia
(Gwembe District) Orders, 1959 to 1964 and the Western
Province (Land and miscellaneous provisions) Act, 1970. The
1995 Lands Act repealed all these Statutes and Orders. The
different functions of the Orders and Statutes were harmonised
under a single Lands Act. This was a step in the right direction.
The move to have a single piece of legislation dealing with land
administration and regulation was in fact overdue. The Land
Commission Report of 1967 had in fact recommended the
revocation of the various Orders (that regulated land
administration) by legislation which was to be entitled the Land
Administration Act.64
64
See Report of the Land Commission 1967. Lusaka: Government Printer (1967) p. 161, chapter 7; see
Recommendation No. 1. The Report is discussed under chapter 11 of this book.
The 1995 Lands Act introduced a radical definition of land.

Whether bare or virgin, land has value by itself without having
regard to human labour or capital expended on it. The notion
under the 1975 Act that bare land had no value has been
discarded. The conferment of value on bare or virgin land has,
however, led to the re-emergence of speculation of bare land
especially in urban Areas.
In terms of classification of land there existed three categories
of land under the repealed (Colonial) Orders as augmented by
the repealed 1975 Act. The land that previously used to be known
as Reserves and Trust land reserves under the repealed Orders
is now known as customary area.65 There are therefore now
two categories of land, viz.: customary area and State land.
The merger of Reserves and Trust land reserves was more
than welcome as the colonial divisions or nomenclature were
more artificial than real. In fact the merger was overdue. As
early as 1967, the Land Commission in its report had
recommended for two categories of land, viz: State land and
customary land.66
The 1995 Lands Act has continued the practice of vesting
land in the President. The principle of vesting goes as far back
as 1928 when the two categories of land i.e., Crown land and
Native Reserves were created by the Northern Rhodesia Order
in Council. Crown land was vested in the Crown while the Native
Reserves, including the native trust land reserves created in
1947, where vested in the Secretary of State. This principle of
vesting land in the President is very controversial especially
amongst the traditional rulers. Some of the traditional rulers have
misunderstood the concept of vesting. The President has no
beneficial interest whatsoever. The land is merely vested in the
Presidency ‘for and on behalf of the people of Zambia.’
Another controversial aspect of the 1995 Lands Act is in
relation to its relaxation of restrictions on the ability of non-
Zambians to acquire land. Under the repealed 1975 Act, as
amended by Act No. 15 of 1985, there were only four instances
under which a non-Zambian could acquire land or an interest in
land. The restrictions have been relaxed under the 1995 Act.
There are now eleven instances under which a non-Zambian
may acquire land or an interest in land.67 It is argued that the
main motive behind the enactment of the 1995 Lands Act was
to allow for greater access to land by foreign investors.
65
See definition of Customary Area under section 2 of chapter 184 of the Laws of Zambia.
66
Supra note 64; see recommendation No. 2.
67
See section 3 (3) a-k of chapter 184 of the Laws of Zambia.
One of the conditions under which a non-Zambian may qualify
to own land in Zambia, under section 3 of the Lands Act, is
where the non-Zambian has obtained the President’s consent in
writing under his own hand. This condition, which was first
introduced under the 1985 Amendment to the 1975 Act, has
been a source of controversy. The provision granting power to
the President to grant land under his own hand has been abused
in the past. This provision is a fertile ground for corruption.
Kaunda has observed that the decision to grant land to non-
Zambians should not be made a prerogative of one man and
suggested the creation of a committee (with laid down specific
criteria for approving applications for land by non-Zambians) to
advise the President in a case where he would want to grant
land under his own hand.68 This is a welcome suggestion which
would reduce the possibilities of corruption. Another way out is
for the complete removal of this provision as it appears not to
serve any useful purpose. It is argued that the Commissioner of
Lands who is the President’s delegate, should grant land to both
Zambians and non-Zambians who qualify under the Act.
The 1995 Lands Act allows for the conversion of customary
tenure to leasehold tenure. There is, however, no mechanism or
provision under the Act to allow for conversion of leasehold
tenure to customary tenure. There is some perception, harboured
by others, that the idea of allowing conversion from customary
tenure to leasehold tenure is aimed at getting rid of customary
tenure.
In terms of conversion of customary tenure into leasehold
tenure, the Act requires the consent of the Chief before this can
be effected. The Act however does not provide a remedy in a
situation where consent is unreasonably withheld by the Chief.
Refusal of consent to convert should, it is submitted, be one of
the grounds for appeal to the Lands Tribunal which would inquire
into the reasonableness or otherwise of the decision to withhold
consent.
In relation to Presidential consent, the repealed 1975 Act
required Presidential consent in all dealings or transactions in
land. In addition, the President was conferred with additional
powers to determine the maximum consideration for any
transaction. Under the 1995 Lands Act, consent is only required
in cases of sale, transfer or assignment. Unlike under the repealed
1975 Act, the President has no powers under the 1995 Act to
determine the maximum considerations for transactions or
68
Kaunda, M., ‘Ownership of Property Rights in Land in the First Two Republics of Zambia: An Evaluation of
Restriction on Free Alienation and some Lessons for the Future’ (1989 - 92), in Zambia Law Journal, Volume
21-24 p. 67.
dealings in land. This is an issue which has been left to the

parties.
The 1995 Lands Act introduced improvements in the grant
of consent by providing time limits for the grant of consent. A
further improvement is the requirement that in the event that
the President refuses to grant consent he should give reasons
for his refusal.69 An aggrieved party may appeal to the Lands
Tribunal for redress.70
In relation to renewal of leases, section 10 of the Lands Act
provides that if the President does not renew the lease the lessee
is entitled to compensation for improvements. It has been argued
that taking into account that bare or virgin land has value under
the 1995 Act compensation arising out of non-renewal of the
lease should include the market value of land and should not be
restricted to improvements.71
The establishment of a Lands Tribunal under the 1995 Lands
Act is a welcome improvement or innovation. There is now an
institution in place to deal with disputes arising from the exercise
of power by the President under the Lands Act. The Lands
Tribunal has a major limitation in relation to its jurisdiction in that
it has no jurisdiction to cancel certificates of Titles. This has
been seen in some of the cases excerpted under the case law
section above.
The Proposed Constitutional provisions relating to land under
the Mung’omba ‘final’ Draft Constitution are very progressive.
From the different concerns raised by the petitioners to the
Constitution Review Commission as well as taking into account
the importance of land, it is only fair that the proposed new
Constitution should have explicit provisions relating to land. The
proposed provisions relating to the creation of a Lands
Commission will lead to greater accountability and transparency
in the allocation and management of land in Zambia.
69
Section 5 (3).
70
Section 5 (4).
71
A.C. Mulimbwa, ‘Land Policy and Economic Development in Zambia’, in Zambian Law Journal, Special
Edition (1998), at pp. 91-92.
473
Chapter Fourteen
COMPULSORY ACQUISITION OF PROPERTY

IN ZAMBIA: The power of Eminent Domain
14.0 Introduction
Compulsory acquisition may be defined as the taking of property

or land or an interest in land, usually under statutory power,
from the owner without his agreement. Where there is statutory
power to take mere possession of the land without the acquisition
of any estate or interest in it apart from the possession, it is said
to have been requisitioned. Compulsory acquisition is an aspect
of the state’s power of eminent domain i.e., 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. In the case of United States of
America v. Frank L.Jones, Adam of George J. Pumpelly
deceased and others, 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.1
The general law relating to the subject of compulsory acquisition

in Zambia is contained in the Constitution2 and the Lands
Acquisition Act3. In addition, statutory provision for acquisition
of land either by the Government or local or other public
authorities is made in legislation relating to particular subjects.
Instances of such legislation giving power to take possession of,
or acquire land compulsorily are, the Electricity Act,4 the Zambia
Tanzania Pipeline Act,5 Tanzania – Zambia Railway Act6 and
1
Law ED US 106 -109 p. 1015.
2
3
4
Chapter 433 of the Laws of Zambia. Section 14 (1) acquisition of land by the President for purposes associated
with generation, transmission, distribution or supply of electricity.
5
Chapter 455 of the Laws of Zambia. Section 7, compulsory acquisition of private land by the President for use
by the company.
the Town and Country Planning Act.7 Most of these statutes

provide for the application of the Lands Acquisition Act, in terms
of compensation for the compulsory acquisition.
14.1 Brief Historical Background to Compulsory Acquisition

of Property in Zambia
14.1.2 The Public Lands Acquisition Ordinance
Dunning has observed that legislation relating to the power of

eminent domain in most African countries could be traced to the
period of colonial rule when the colonial rulers introduced
legislation based on their European experiences and that many
African countries inherited, upon independence, eminent domain
legislation with a broad but real public purpose limitation.8 Dunning
further went on to observe that a number of those countries
have since (their independence) recast their law of eminent
domain. Theses observations by Dunning are true in relation to
Zambia.
Legislation relating to the power of eminent domain in Zambia
can be traced back to 1929 when the Public Lands Acquisition
Ordinance was enacted. The Public Lands Acquisition
Ordinance, 9 was first enacted by the Northern Rhodesia
Legislative Assembly in 1929. Section 3 of the Ordinance
empowered the Governor to acquire any lands required for any
public purposes for an estate in fee simple or for a term of years
as he could think proper, paying such consideration or
compensation as could be agreed upon or determined under the
provisions of the Ordinance. Section 2 of the Ordinance defined
public purpose to mean for the exclusive use of Government or
for general public use. In terms of section 9 of the Ordinance,
any dispute as to compensation and title was to be settled by the
High Court. The Public Lands Acquisition Ordinance, which at
independence became an Act, remained on the statute books
until 1970 when it was repealed by the Lands Acquisition Act
1970.10
6
Chapter 454 of the Laws of Zambia. Section 60, acquisition of land for purposes of Authority, rail line under
construction.
7
Chapter 283 of the Laws of Zambia. Section 40 (1), acquisition of land for planning purposes, see also sections
10, 11 and 26 of the Zambia Wildlife Act, section 65 of the the Local Government Act, sections 10 and 19 of
the Forest Act, section 27 (1) of the National Housing Authority Act.
8
Dunning, H.C., Law and Economic Development in Africa: the Law of Eminent Domain’, Columbia Law
Review 68 (1968) 68.1286 at 1292.
9
Chapter 87 of 1958 edition of the Laws of Zambia; since repealed.
10
See section 30 (1) of the Lands Acquisition Act; Chapter 189 of the Laws of Zambia.
COMPULSORY ACQUISITION OF PROPERTY IN ZAMBIA:
THE POWER OF EMINENT DOMAIN 475
14.1.3 The Independence Constitution as Regards Property
Rights and Compulsory Acquisition
The Zambian Independence Constitution, like most of the

Independence constitutions of former British colonies and
protectorates, was a British legacy. The Zambian Independence
Constitution entrenched a Bill of Rights. The Bill of Rights or
any provisions thereunder could not be amended without a
referendum in which all registered voters were entitled to vote.11
Section 18 of the Independence Constitution specifically
guaranteed protection against deprivation of property and
prohibited compulsory acquisition, except on the grounds itemised
or circumscribed under the section, in which case adequate and
prompt compensation had to be paid. Further, section 18 (2) of
the Independence Constitution allowed the person entitled to
compensation under the section to remit within a reasonable
time after he had received any amount of compensation the
whole of that amount to any country of his choice outside Zambia.
It has been observed that section 18 of the Independence
Constitution represented ‘an attempt by the outgoing British
Government to secure the continued exploitation of
independent Zambia by the settlers and to protect their rights
to property, although many of them had already left the
country permanently.’ 12 The Independence Constitution
allowed the dispossessed land owner access to the courts to
determine the legality of the acquisition and the amount of
compensation and the promptness of payments.
Section 18 of the Independence Constitution provided that:
(i) 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,
except where the following conditions are
satisfied, that is to say-
(a) the taking of possession or acquisition is
necessary or expedient-
(i) in the interest of defence, public
security, public order, public morality,
public health, town and country
planning or land settlement; or
11
See section 72 of the Independence Constitution.
12
See James, R.W., ‘Mulungushi Land Reform Proposals Zambia,’ 9 Eastern Africa Law Review 124 (1972).
(ii) in order to secure the development or

utilisation of that, or other, property for
a purpose beneficial to the community;
and
(b) provision is made by a law applicable to
that taking of possession or acquisition-
(i) for the prompt payment of adequate
compensation; and
(ii) securing to any person having an
interest in or right over the property a
right of access to a court or other
authority for the determination of his
interest or right, and the amount of any
compensation to which he is entitled,
and for the purpose of obtaining
prompt payment of that
compensation.
After Independence, most of the landed white settlers left the

country leaving large tracts of land. The nascent Zambian
Government of President Kaunda found itself in a situation
where it could not legally acquire the large tracts of land that
were left abandoned and unutilised due to the provisions of section
18 of the Independence Constitution. Under section 18 of the
Independence Constitution, it was not a ground for compulsory
acquisition of land if the same was abandoned, unoccupied,
unutilised, underdeveloped or if it was owned by an absentee
landlord.
14.1.4 The 1969 Referendum
As pointed out above, any amendment to the Independence

Constitution’s Bill of Rights required a referendum. The 1969
referendum was intended to end all referenda, because it was
ultimately intended to remove the entrenchment clause in the
Constitution and simplify the amendment of any part of the
Constitution to a Parliamentary majority. In 1969, a referendum
was held during which the majority of the registered voters voted
for the removal of the entrenchment clause.
Once the referendum had removed the constitutional barrier,
the constitutional procedure was duly amended and Parliament
enacted a number of Constitutional Amendment Acts including
the Constitutional (Amendment) (No. 5) Act, 1969.13 Section 4
of the said Amendment Act repealed the whole section 18 of
13
See Act No. 33 of 1969.
the Independence Constitution and substituted a new section
18. The new section 18 of the Constitution continued to
guarantee protection against deprivation of property. Compulsory
Acquisition could be done under the authority of an Act of
Parliament which provided for payment of compensation for
the property or interest or right to be taken possession of or
acquired. In general, the amendment Act extended the grounds
on which land could be compulsorily acquired by the Government.
The amendment allowed compulsory acquisition in terms of any
law relating to abandoned, unoccupied or undeveloped land as
defined under such a law and also in terms of any law relating
to absent or non-resident owners as defined in such a law.
The new section 18 provided that:
(1) save as hereinafter provided, no property of

any description shall be compulsorily taken
possession of, no interest in or right over
property of any description shall be
compulsorily acquired, except under the
authority of an Act of Parliament which
provides for payment of 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 contravention of subsection (1) of this
section to the extent that such law provides
for the taking possession or acquisition of any
property or interest therein or right thereover -
[citing only what is relevant for our
purposes];
(j) in terms of any law relating to abandoned,
unoccupied, unutilised or undeveloped land, as
defined in such law;
(k) in terms of any law relating to absent or non-
resident owners, as defined in such law, of any
property;
The Constitutional amendment also took away the power of the

courts to determine the amount of compensation. Under the
amendment, in default of agreement the amount of compensation
was to be determined by a resolution of the National Assembly.14
Once the compensation was determined by the National
14
Section 18 (3) (iii).
Assembly, it could not be questioned in any court on the ground

that such compensation was not adequate.15
It has been observed that the practical effect of the 1969
constitutional amendment, was that security of rights in land
was conditional upon the land being put to good use, failure to
which the rights could be abrogated.16
14.2 Constitutional Basis for Compulsory Acquisition of

Property in Zambia
The current 1991 Constitution, as amended, like the previous

Constitutions the country has had, provides guarantees and
protection against deprivation of property. Article 16[1] of the
Constitution provides that:
(1) Except as provided in this Article, property of

any description shall not be compulsorily taken
possession of, and interest in or right over
property of any description shall not 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.
Article 16 (1) of the Constitution clearly states the general rule

that the acquisition must be under a law which must provide for
adequate compensation. Sub-article 2 of article 16 of the
Constitution gives exceptions to the general rule. The sub-article
provides for instances where property could be compulsorily
taken away without adequate or any compensation.
Sub-article 2 of article 16 provides that:
(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…. And it
goes on to list numerous situations but of
relevance to the subject matter at hand being
15
Section 18 (4). See the case of Van Blerk v. Attorney General and Another, Supreme Court Appeal No. 138 of
2002. The case is excerpted under the section dealing with case law.
16
See Kaunda, M., ‘Ownership of Property Rights in Land in the First Two Republics of Zambia: An Evaluation
of Restrictions on Free Alienation and some Lessons for the Future’, Zambia Law Journal, Volume 21-24
(1989-92), p. 63.
the exceptions under article 16 (2) (j) and (k)
which provide as follows:
(j) in terms of any law relating to

abandoned, unoccupied, unutilised or
undeveloped land, as defined in such
law;
(k) in terms of any law relating to absent
or non-resident owners, as defined in
such law, of any property.
In terms of article 16 (3) of the Constitution, the powers to

decide on the amount of compensation, in default of agreement,
has been reverted from Parliament to a court of competent
jurisdiction.
Article 65 of the Mungomba Final Draft Constitution17 (which
falls under the proposed Bill of rights and which to a large extent
is a re-enactment of article 16 of the current Constitution)
provides that:
(1) Every person has a right to access, acquire

and own land and other property either
individually or in association with others.
(2) The State shall not deprive a person of property
of any description or of any interest in or right
over property, except under an Act of
Parliament.
(3) Legislation shall not authorise deprivation of
any interest in or right over property of any
description, except-
(a) where deprivation of any interest in or
right over property is justifiable balancing-
(i) the public benefit; and
(ii) hardship that may result to any
person who has an interest in or right
over the property;
(b) where the legislation specifies the
consequence for non-compliance with the
law;
(c) where a property consists of a licence or
permit; and
(d) to the extent permitted under this
Constitution.
(4) Subject to this Constitution, prompt payment
of full and fair compensation shall be made
17
The proposed Constitution provisions relating to land are dealt with under section 13.1.5 of Chapter 13.
prior to acquiring, assuming occupation or

possession of any property, as provided under
(5) Every owner of-
(a) a leasehold interest in land has the right
to be issued a certificate of title setting
out that interest and, at the expiry of the
lease, to a renewal of the lease; and
(b) any other right or interest in land has the
right to register that right or interest.
(6) The rights recognised and protected under this
article do not apply to any property that has
been unlawfully acquired.
14.3 The Legal Framework for Compulsory Acquisition of

Property in Zambia: The Land Acquisition Act, 1970
The Public Lands Acquisition Act,18 which has been briefly

discussed under section 14.1.2 above, remained on the statute
books up to 1970, when it was repealed by the Lands Acquisition
Act. The Lands Acquisition Act was enacted following the
removal of the entrenched clauses under the Constitution of
Zambia (Amendment) Act of 1969 pursuant to a referendum of
the same year. The Lands Acquisition Act was enacted mainly
to address the problem created by absentee landlords who left
after the country attained independence in 1964. The Lands
Acquisition Act was conceived as a radical departure from the
Lands Acquisition Ordinance in that the exercise of powers of
compulsory acquisition is not shackled by an authoritative
enumeration of the purposes for which land may be compulsorily
acquired.19 The Act does not deny the justice of requiring
compensation for the compulsory acquisition of private property.
The Act, in terms of section 15, restricts payment of
compensation to only developed and utilised land and not
undeveloped and unutilised land.
Absentee Landlords were singled out or targeted as the object
of the Act. After the passage of the Act, the then Minister of
Lands and Natural Resources, Mr Solomon Kalulu, was reported
to have told the National Assembly that:
18
Chapter 87 of the 1958 Edition of the Laws of Zambia.
19
Mbao, M.L.M., ‘Legal Aspects of Uncontrolled and Unplanned Urban Settlements in Zambia’: A Comment
on the Housing (Statutory and Improvement Areas) Act, 1974’, Zambia Law Journal, Volume 15 (1983),
at p. 93
…We will spare no time in making sure that the
teeth of that Act are put to use ... It is evil to live in
a country where parcels of land are possessed by
absentee landlords living like dogs in a manger…
the sooner this exercise was done, the better.20
14.4 Salient Provisions of the Act
The preamble to the Lands Acquisition Act provides that it is

‘an Act to make provision for the compulsory acquisition of
land and other property and to provide for matters incidental
to or connected with the foregoing’. Section 2, of the Act,
defines land to include ‘interest in or right over land but shall
not include a mortgage or other charge’. Property is defined
under the section to include ‘land, and includes any interest
or right over property, but shall not include a pledge or
other charge’.
Section 3 of the Lands Acquisition Act empowers the
president to compulsorily acquire any property of any description
whenever he is of the opinion that it is desirable or expedient in
the interests of the Republic to do so. Section 3 provides that:
Subject to the provisions of this Act, the President

may, whenever he is of the opinion that it is
desirable or expedient in the interests of the
Republic so to do, compulsorily acquire any property
of any description.
The section, and indeed the whole Act, is silent on the question
of the purpose or purposes for which the State may compulsorily
acquire property. In contrast, the repealed Public Lands
Acquisition Act had a clear definition of what constituted public
purpose on the basis of which the Governor and later the
President could compulsorily acquire land. Be that as it may, it
has been held by the High Court for Zambia that the fact that
the Act is silent 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.
The purpose for compulsory acquisition must be a public one.21
20
See Hansard, 25 February 1970.
21
Wise v. the Attorney-General (1990/92) ZR 124. This case is excerpted under the section dealing with case
law.
The President’s discretionary powers must be exercised in good

faith and not for ulterior motives.
Once the President has made the resolve to compulsorily
acquire property under section 3, the Minister of lands is required,
under a prescribed form, to give notice of intention to acquire
property to the persons interested in the property. The Act under
sections 5 to 9, lays down the steps and formalities required to
complete the process of acquisition.
Part III of the Act, covering sections 10 to 14, deals with the
issue of compensation. Section 10 provides that adequate
compensation is payable where any property is acquired by the
president under the Act. Section 11 provides for procedures for
dealing with disputes relating to compulsory acquisition.
Subsections 1 and 2 of section 11 provide as follows:
(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.
Section 12 of the Act provides for principles for assessment of

adequate compensation for any property that is to be acquired
under the provisions of the Act. In assessing adequate
compensation as provided for in the Constitution for any property
to be acquired under the Act, the Minister and the court are
obliged to act in accordance with the principles set out under
the section. In 1992, section 12 of the Act was amended by
Statutory Instrument number 110 of that year so as to permit
any assessment of compensation to take into account (by
deduction) any money used in developing the land which was
donated by the Government and any companies that did not
certify that their contribution was specifically made for the use
and benefit of the registered owner.22 This amendment, which
appears to have been targeted against a property known as the
new UNIP Party Headquarters building which was owned by
Zambia National Holdings Limited, a subsidiary company of
UNIP, was one of the issues which was in controversy in the
case of Zambia National Holdings and Another v. The
Attorney General.23
Part IV of the Act covering sections 15 to 16 deals with
unutilised and undeveloped land as well as absent landlords. It
will be recalled that the Act was mainly enacted to address the
problem created by absentee landlords who left large tracts of
land that fell out of production. Section 15 (1) provides the
general rule that no compensation is payable in respect of
undeveloped land or unutilised land. Section 15 enacts as follows:
(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 unutilised land.
Section 16 defines an ‘absentee owner’ to mean,
A person who is not ordinarily resident in Zambia

and in 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.
Part V of the Act covering sections 17 to 20 deals with the

issues of transfer of the compulsorily acquired property to the
president.
Part V1 of the Act covering sections 21 to 24 deals with the
Compensation Advisory Board which is established under section
21 for the purpose of advising and assisting the Minister in the
assessment of any compensation payable under the Act.
Section 27 (1) provides for certain dispositions to be void.
22
Section 6 (1) and (2) of the Constitution of Zambia Act No. 1 of 1991 which empowered the President to make
a Statutory Instrument, Provides: Subject to the other provisions of this Act, and so far as they are not
inconsistent with the Constitution, the existing laws shall continue in force after the commencement of this
Act as if they had been made in pursuance of the Constitution, but shall be construed with such modifications,
adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the
Constitution. (2) The President may by statutory instrument at any time within two years of the
commencement of this Act, make such amendment to any existing law as may appear to him to be necessary
or expedient for bringing that law into conformity with the provisions of this Act or the Constitution or
otherwise for giving effect or enabling effect to be given to those provisions.
23
1993/1994 ZR 115. The case is excerpted below under the section dealing with case law.
(1) Any disposition of or other dealing with (other

than by or to the President in terms of this Act)
undeveloped land or unutilised land-
(a) in the case of an absentee owner, after the
22 October 1969; or
(b) in any other case, after the service of a notice
under section five;shall be void:
Provided that nothing in this subsection shall apply
to any disposition of or other dealing with land-
(i) the acquisition of which has not been
completed in terms of section twenty-five;
or
(ii) by an executor or an administrator pursuant
to the will of or on the intestacy of a person
who was ordinarily resident in the Republic
at the time of his death.
(2) Notwithstanding the provisions of subsection (1),
where consideration in money or money’s worth
has been given prior to the 22nd October, 1969,
under any contract (which for the purposes of
this section includes negotiations evidenced in
writing preparatory to entering into a written
contract) for the sale and purchase of land, the
Minister may, if satisfied that hardship would
otherwise be caused, exempt any such contract
and any transfer pursuant thereto from the
provisions of this section.
14.5 Case Law
(a) 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
Wise v. Attorney General (1990/1992) ZR 124
BWALYA, B.M. JUDGE: This is the plaintiff’s claim by way of writ

of summons whose details in the statement of claim are as
follows:
1. By a will dated 18th January, 1979 the late Eric
Falkenburg Harvey (‘the deceased’) bequeathed to
his nephew the plaintiff his leasehold properties being
the remaining extent of Farm No. 134a Mazabuka and
Subdivision No. 1 of Farm 136a (‘the farm’).
2. The deceased died on 10th May, 1980 and on 27th
November, 1981 the executors of the deceased
assented to the bequest of the farm in favour of the
plaintiff who thereby became tenant thereof from the
President for a term of 100 years from 1st July, 1975.
3. That E.F. Harvey Limited was at the date of deceased’s
death in occupation and working on the said farms for
its use and benefit and continues in such occupation
up to the date hereof.
4. By an agreement made in writing the plaintiff granted
E.F. Harvey a lease of the said farms excluding the
main residence thereon for a term of 12 months from
1st September, 1982 at a rent of K2,500.00 per month
payable monthly in advance and the said E.F. Harvey
Limited undertaking to vacate the farms on 31st
August, 1983.
5. That E.F. Harvey Limited agreed thereto and continued
in possession thereof but notwithstanding the plaintiff’s
written notice to them on about 20th June, 1983 they
held over the farms and kept the plaintiff out of
possession thereof from and after 31st August 1983
and in addition thereto failed and/or neglected to pay
the agreed rate of K2,500.00 per month for the period
of 1st May, 1983, to 31st August, 1983.
6. That the plaintiff commenced legal proceedings against
E.F. Harvey Limited on 22nd September, 1983 for,
inter alia, possession of the said farms, arrears of
rentals and mesne profit
7. That on 18th November, 1987 the High Court for
Zambia adjudged that the plaintiff is the owner of the
said farms entitled to possession thereof of and mesne
profits from 1st September, 1983, to date of judgment.
8. That E.F. Harvey Limited appealed the decision of
the High Court to the Supreme Court on 18th December,
1987. It secured a stay of execution of the order for
possession for six months and a further four months
thereafter.
9. On 24th November, 1988 the Honourable Mr Justice
M.S. Ngulube, Deputy Chief Justice in Chambers,
found no basis to stay execution on the award for

possession of the farms as the two previous stays of
execution were for the purpose of E.F. Harvey Limited
harvesting and removing themselves and it would be
totally inequitable to allow them to plant new crops
and so again stretch their claim for further relief against
the lower court’s judgment in that respect.
10. That about the week following the said decision of the
Deputy Chief Justice the then Right Honourable Prime
Minister Kebby Musokotwane, M.C.C., MP, called the
plaintiff to his offices and informed him one Raymond
Barrett of E.F. Harvey Limited had made
representations to him and the plaintiff should permit
him or his company to continue farming on the plaintiff’s
farms.
11. The plaintiff declined to agree to the request and placed
his reliance on the decision of the Court as
aforementioned.
12. Therefore the Honourable Minister of Water, Lands
and Natural Resources Mr P. Malukutila, M.C.C., MP,
requested the plaintiff’s attendance at a meeting at his
Chambers. The plaintiff attended the offices at which
time he also found present there the said Raymond
Barrett, one Patrick Katyoka and the Member of
Parliament where the farms are located also there to
attend the same meeting. The Minister was not present
and the meeting was aborted.
13. That E.F. Harvey Limited moved the full Bench of
the Supreme Court to set aside the decision of the
Honourable Mr M.S.W. Ngulube, Deputy Chief Justice
and the full Bench of the Supreme Court presided by
the Honourable Chief Justice, Annel Musenge Silungwe
dismissed its motion on 27th December, 1988.
14. On 27th December, 1988 E.F. Harvey Limited
withdrew the substantive appeal but did not serve
notification thereof on the plaintiff until after 13th
January 1989.
15. On 9th January, 1989 the Sheriff of Zambia and his
bailiff sought to enforce a writ of possession issued by
the High Court for Zambia and on the same day
immigration officers showed a deportation order
purported to have been signed by the Honourable
Minister of State for Home Affairs who had earlier
visited the said farms.
16. The plaintiff was immediately detained in prison pending
deportation. On 13th January, 1989 he was served with
two notices of intention to acquire property and to yield
up possession in respect of the farms pursuant to ss. 5
and 6 of the Lands Acquisition Act 1970. Copies of
the said notices were purported to be served on
Raymond Harvey Barrett. The plaintiff and Raymond
Harvey Barret were required to yield up possession
of the farms on or before 12th March, 1989.
17. That E.F. Harvey Limited and Raymond Barrett had
continued to be in possession and occupation of the
said farms notwithstanding the judgment of the High
Court, the orders of the Supreme Court and the writ
of possession issued by the High Court and executed
by the bailiff.
18. That the defendant has dispossessed the plaintiff of
the said farms and purported to acquire the said farms
from him and give the said farms to E.F. Harvey
Limited. The plaintiff avers that the defendant’s actions
undermine and render the adjudicating authority vested
in the continuationally established judiciary nugatory.
19. The plaintiff further avers that the defendant’s actions
in compulsorily acquiring the plaintiff’s said farms and
giving it to E.F. Harvey Limited and or Raymond
Barrett a private individual and institution whatever
the terms of tenure is not and cannot constitute an
acquisition in the national interest as envisaged in the
Constitution and the Compulsory Acquisition Act and
is wholly in breach thereof.
The plaintiff claims:
(i) (a) An order and or declaration that the notices of
intention to acquire property and to yield up
possession dated 13th January, 1989 served on
plaintiff’s representative whereby the defendant
purported to compulsory acquire the plaintiff’s two
farms pursuant to ss. 5 and 6 of the Land Acquisition
Act 1970, namely the remaining extent of Farm 134a
‘Springs’ and Subdivision 1 of Farm 136a, both at
Mazabuka, Southern Province of Zambia, is
wrongful, irregular and unlawful and of no legal
effect whatsoever.
(b) The compulsory acquisition of the said two farms
pursuant to ss. 5 and 6 of the Land Acquisition Act
1970 is wrongful, irregular and unlawful.
(ii) An order or declaration that the plaintiff is the owner of

the said two farms.
(iii) An award of damages for wrongful compulsory
acquisition of the said farms.
(iv) Further and other relief.
The statement of defence is as follows:
1. Paragraphs 2 and 3 are within the personal knowledge
of the plaintiff.
2. The defendant puts the plaintiff to strict proof of the
matters raised in paras 4 and 5 of the statement of claim.
3. Paragraphs 6, 7, 8 and 9 are within the personal
knowledge of the plaintiff.
4. The defendant puts the plaintiff to strict proof of the
matters raised in paras 10, 11 and 12 of the statement of
claim.
5. Paragraphs 13 and 14 are within the personal knowledge
of the plaintiff.
6. The defendant admits that the plaintiff was declared a
prohibited immigrant, and was detained pending
deportation. The defendant further admits that the
plaintiff was served with notice to yield up possession.
7. The defendant denies para. 7 of the statement of claim.
8. The defendant denies that the farms were compulsorily
acquired for the purpose of giving them to E.F. Harvey
Limited, but argues that the same were acquired in the
interest of the Republic, and had nothing to do with court
cases between the plaintiff and Harvey Limited and
Raymond Barrett.
9 (a) The notices of intention to acquire property are legal,
proper and made in good faith, and therefore valid.
(b) The compulsory acquisition of the said two farms is
neither wrongful, irregular nor unlawful, and
therefore the land is now properly vested in the
President.
10. As for damages, since compensation is being worked
out under the Lands Acquisition Act, no damages can be
awarded by the court. The proper course of action to
take if dissatisfied with the amount for compensation
that will be paid will be to appeal to Parliament.
The plaintiff did not give evidence because he was detained and
then deported but called two witnesses. The defendant was
represented and in attendance but called no witnesses.
The facts emanating from the evidence, documents and
pleadings before this court are as follows:
1. The plaintiff came to Zambia in 1952 and, in return for
devoting his life in assisting his uncle Eric Harvey on his
farms in Zambia, he was to inherit the said two farms
and in May 1980, upon the death of his said uncle, he did
inherit the two farms which are now the subject matter
of this action.
2. The plaintiff permitted the widow, after the death of her
husband, to continue farming in the name of the company
E.F. Harvey Limited free of charge until September 1982,
when he granted the widow’s company a lease for a
period of 12 months.
3. The company, now owned by Raymond Barrett and his
wife Lynn, refused to give up possession and succeeded
in protracting the dispute in court until November 1987,
when the High Court adjudicated thereon and held in
favour of the plaintiff. The company secured two
temporary stays of execution of the judgment pending
its appeal against the judgment of the High Court to the
Supreme Court.
4. The Supreme Court, however, on two occasions, the first
in November 1988 and again in late December 1988,
dismissed the defendant’s application for stay of the order
for possession pending the determination of the appeal.
The effect of the order was that E.F. Harvey Limited
were subject to removal from the farms by the Sheriff.
Writ of possession issued by the High Court of Zambia
was partially executed by the Sheriff of Zambia on 9th
January 1989 but on 10th January 1989 E.F. Harvey
Limited moved back the items removed by the Sheriff
and for reasons best known to the Sheriff no further
action was taken by him on the writ of possession.
5. Instead, the plaintiff, an established resident, was detained
by immigration officers on the night of 9th January, 1989,
and, whilst in prison on 13th January 1989 was served
with the two notices of intention to acquire the two farms.
The plaintiff was compelled to leave the country and did
so shortly thereafter without regaining freedom.
The evidence of PW1 Munir Khan established the following:
(i) He testified in proceedings bearing case No.1983/HP/
1471 and had sight of Judge Irene Mambilima’s
judgment in those proceedings. The Minister of Land

was also aware of the judgment of the High Court and
orders of the Supreme Court.
(ii) He had met representatives and officers of the
company E.F. Harvey Limited, namely Raymond
Barrett and Patrick Katyoka, on three to four occasions
in his office.
(iii) The witness is aware that E.F. Harvey Limited has been
in possession of the said two farms all along. Initially it
was in possession because the notifications dated 13th
January 1989 permitted Raymond Barrett to continue
occupying the farms until 12 March 1989. Thereafter
someone authorised them to continue occupying the
farms until 26th June 1989 when he formally allowed
E.F. Harvey Limited to continue farming. The company
is still in occupation and possession of the farms.
The defendant’s position from the pleadings is that the farms in
question were not acquired for the purpose of giving them to
E.F. Harvey Limited but were acquired in the national interest
totally divorced from the previous proceedings before the courts.
However, the plaintiff parries this contention by arguing that
this contention is necessarily suspect in the light of the defendant’s
earlier denial that E.F. Harvey Limited is not in possession and
occupation of the two farms.
The plaintiff further argues that the defendant has not pleaded
what national interest the farms were acquired for, nor has the
defendant attempted to lead any evidence in that regard and
that even the resolve, if any, has not been produced in court. It
is the plaintiff’s submission that it is incumbent upon the
defendant, the State, in this case, to say the purpose for which
property (the two farms) is compulsorily acquired.
It is further the plaintiff’s contention that it is not sufficient
for the defendant to state that because compensation is offered,
it need not stipulate the purpose of acquisition other than national
interest or interest of the Republic. The plaintiff also submits
that in the absence of any evidence whatsoever, it could
therefore be concluded that the use for which the two farms
have been employed, as being the national interest or interest of
the Republic, the defendant (State) has in mind, the use by E.F.
Harvey Limited.
In support of the foregoing contention and arguments, which
unfortunately were not challenged by the defendant, the plaintiff
cited several authorities which I shall refer to in the course of
the judgment. In spite of the cross-examination of the plaintiff’s
witnesses, the evidence of the plaintiff remained unchallenged
and uncontradicted.
This case hinges on the question of whether the said
compulsory acquisition of the two farms was done mala fides
(in bad faith). The plaintiff says it was done in bad faith. The
defendant gives a flat No. and pleads that notices of intention to
acquire property are legal, proper, made in good faith and
therefore valid. Be that as it may, I proceed to examine the law
on the question of bad faith vis-à-vis the Act in question.
The Lands Acquisition Act, Cap 296 of the Laws of Zambia
empowers the President of the Republic of Zambia, whenever
he is of the opinion that it is desirable or expedient in the interest
of the Republic so to do, compulsorily to acquire any property of
any description. That is the general thrust of this Act. The Act
does not stipulate the purpose or purposes for such compulsory
acquisition. I should hasten to say that the silence of the Act on
the question of the purpose or purpose for which the state may
compulsorily acquire property upon payment of compensation
does not per se give the State a blanket compulsory acquisition
without any cause or purpose. There is a plethora of case law in
common-law jurisdictions which shows that where no purpose
has been indicated in the statute the courts will look at the intention
of the Legislature and invariably give an implied purpose. This
is an indication that there can be no compulsory acquisition
without cause or purpose.
Furthermore, in common-law jurisdictions the purpose for
compulsory acquisition of property upon payment of
compensation must be a public one. What constitutes public use
frequently and largely depends upon facts surrounding the
subject. It has been held that the letting of private property not
for public use but to be leased out to private occupants for the
purpose of raising money is an abuse of the power of eminent
domain and may be redressed by action at law like any other
illegal trespass, done under an assumed authority. The issue of
public use is a judicial question and one of law to be determined
on the facts and circumstances of each particular case.
In the case before me, the evidence has shown that
acquisition of the two farms and the allowing of E.F. Harvey
Limited and Mr Barrett to remain in occupation of the said farm
for agreed rent put the compulsory acquisition, especially the
purpose for such compulsory acquisition, into question. It is
needless in my view to over emphasise that this transaction

tainted the compulsory acquisition and is a pointer or indication
that it could not have been done in good faith especially taking
into account the facts and circumstances surrounding the
compulsory acquisition. For instance, the High Court and the
Supreme Court made certain decisions in regard to the subject
matter. The detention and the deportation of the plaintiff are
matters that I have taken judicial notice of and indeed the timing
of the compulsory acquisition cannot be ignored albeit s.17 of
the Land Acquisition Act, Cap 296, which reads:
Where a notice to acquire any land under this

Act has been published in terms of s. 7, the
persons entitled to transfer the land shall,
notwithstanding anything to the contrary
contained in any other law or in any order of any
court otherwise than under this Act, within two
months of the publication of such notices transfer
the same to the President.
Which the Minister of Lands and Natural Resources referred

to in his correspondence with the plaintiff’s advocates. Taking
the foregoing section into account and the total circumstances
of this case, is what I may call a deliberate move by the Minister
to negate the decision of the courts, the matter cannot be left to
rest there. All these circumstances as shown in evidence of the
plaintiff and his submissions, in my view and finding, amount to
the exercise of discretion in bad faith.
In the case before me the compulsory acquisition of the two
farms, as I find it, was solely for the interest of an individual
company, E.F. Harvey Limited, and its officers, Mr Barrett being
one of them. The purported interest of the republic is too remote,
if at all, a reason and far-fetched. It cannot be sustained in law.
What the said company and its officers failed to acquire before
the courts of law cannot be allowed to be acquired through
intervention of the state (executive) acting in violation of the
rule of the law. I fully agree with the learned counsel for the
plaintiff’s submission in this regard that ‘such action is scandalous
and not acceptable in a democratic society like Zambia.
It is further clear from the facts and circumstances shown in
evidence that there was no present and immediate need for the
purported acquisition of the property in question in the national
interest or interest of the Republic. See Halsbury’s Laws of
England 4th ed. vol. 8 para. 50.
In the instant case the state has not to this day applied the
farms for a public purpose.
As I have already found that the defendant exercised his
discretion in bad faith, the purported compulsory acquisition is
null and void ab initio therefore the plaintiff’s action succeeds
having proved his case on a balance of probabilities. For the
avoidance of doubt, the declaration and order of the court is that:
(a) the notices of intention to acquire property and to yield
up possession dated 13th January 1989, served on the
plaintiff’s representative whereby the defendant
purported to compulsorily acquire the plaintiff’s two
farms under ss. 5 and 6 of Lands Acquisition Act,
Cap 296, namely the remaining extent of Farm 134a
‘Spring’ and sub-division 1 of Farm 136a both at
Mazabuka Southern Province of Zambia, are irregular
and unlawful and therefore nullified;
(b) the compulsory acquisition of the said two farms is
null and void ab initio;
(c) the plaintiff is and continues to be the owner of the
said two farms;
(d) the plaintiff is awarded damages to be assessed by
the learned Deputy Registrar;
(e) the defendant is condemned in costs, in default to be
taxed.
The powers of compulsory acquisition must be exercised in good

faith and not in furtherance of ulterior motives. Where land is
compulsorily acquired on the grounds that its owner is about to
make a large profit out of the land, the court will grant an
injunction to restrain or quash the order. This was the case in
Municipal Council of Sydney v. Campbell and Others. 24
This was an appeal to the Privy Council from the Supreme Court
of New South Wales. The question in the appeal was whether
the appellant council had rightly been restrained from compulsorily
acquiring the respondents’ land in the city of Sydney under its
statutory powers contained in the Sydney Corporation
Amendment Act (No. 39 of 1905) as amended. The appellants
had statutory power to acquire compulsorily land required for
the purpose of making or extending streets, also land required
for ‘carrying out improvements in or remodeling any portion of
the city.’ In connection with the extension of the street, they
resolved to acquire the respondents’ land for the latter purpose.
24
[1925] AC 338.
They had previously been restrained from acquiring the land for
the extension, on the ground that it was not really required for
that purpose, but that its purchase was desired because of its
probable increase in value. No plan for improving or remodeling
the area was considered or proposed, and evidence as to
proceedings in the council showed that the appellants were
endeavoring to give a new form to the transaction previously
decided upon, rather than considering whether the respondent’s
land was required for improving or remodeling. The Privy Council
held that the evidence sustained the lower court’s conclusion of
fact that the appellants were exercising their powers for a
purpose differing from those specified in the statute, and that
they had rightly been restrained from acquiring the respondent’s
land.
In the course of delivering the decision of the Privy Council,
Mr Justice Duff observed thus:
The legal principles governing the execution of such

powers as that conferred by s.16, in so far as
presently relevant are not at all in controversy. A
body such as the Municipal Council of Sydney,
authorised to take land compulsorily for specified
purposes will not be permitted to exercise its powers
for different purposes, and if it attempts to do so,
the courts will interfere.25
(b) The Lands Acquisition Act does not contravene the letter
and spirit of Article 16 of the 1991 Constitution as
amended
In Zambia National Holdings Limited and United National

Independence Party (UNIP) v. The Attorney-General,26 the
appellants brought a petition in the High Court to challenge the
decision of 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.
25
Ibid., at p. 343.
26
(1993/94) ZR 115.
The appellants wrote to the respondent suggesting a sum of
money to be paid as compensation but as 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 case
proceeded on that basis both in the High Court and the Supreme
Court. The petition was unsuccessful and so was appeal the
Supreme Court. The case is excerpted below.
NGULUBE, CJ, as he then was (starting at page 121) …The

second ground of appeal alleged that the learned trial Judge
erred in law and in fact when he decided that the Lands
Acquisition Act did not contravene the spirit and intent of article
16 (1) of the Constitution. This article reads:
16 (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.
One of the appellants’ arguments at the
trial which has not been repeated with any
enthusiasm here had been that any
compulsory acquisition under sub-article (i)
had to fit into one of the ‘pigeon holes’ sub-
article (2). Sub-article (2) reads: ‘(2)
Nothing contained in or done under the
authority of any law shall be held to be
inconsistent with or in contravention of
clause (i) 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 there over . . .’ and goes on
to list numerous situations such as
satisfaction of any tax, execution of
judgments or orders of the court, and so on.
article 16 (1) clearly states the general rule,
that is, the acquisition must be under a law

which must provide for adequate
compensation. Sub-article (2) ,on the other
hand, goes on to give exceptions to, and not
categories of, the general rule. It deals with
situations where an involuntary loss of
property could take place even without
adequate or any compensation. We see no
need for a strained and exotic construction
of this straight forward article in the manner
attempted, and properly rejected, at the trial.
Before this court, Mr Sakala’s arguments were to this effect:

Prior to the promulgation of Statutory Instrument number 110 of
1992 published on 30th July 1992 (long after the commencement
of the suit), under which the president, in the exercise of
extraordinary powers granted by s. 6 (2) of the constitution of
Zambia Act, number 1 of 1991, effected amendments to the
Lands Acquisition Act, Cap 296, this last mentioned Act was at
variance with the current constitution in two important respects.
In conformity with the old constitutional regime, the Lands
Acquisition Act before the amendments required disputes as to
compensation to be referred to the National Assembly when
the current constitution ordains that they be referred to the court.
Again, the unamended law simply referred to ‘compensation’
while the present Constitution requires ‘adequate compensation.’
The submission was that Cap 296 was thus obsolete and in
contravention of Article 16(1) of the Constitution. Section 6 (1)
and (2) of the Constitution of Zambia Act, number 1 of 1991,
read:
6 (1) Subject to the other provisions of this Act,

and so far as they are not inconsistent with
the Constitution, the existing laws shall
continue in force after the commencement
of this Act as if they had been made in
pursuance of the Constitution, but shall be
construed with such modifications,
adaptations, qualifications and exceptions
as may be necessary to bring them into
conformity with the Constitution.
(2) The President may by statutory instrument
at any time within two years of the
commencement of this Act, make such
amendment to any existing law as may
appear to him to be necessary or expedient
for bringing that law into conformity with
the provisions of this Act or the Constitution
or otherwise for giving effect or enabling
effect to be given to those provisions.
In our considered opinion, even assuming that Statutory

Instrument No. 110 of 1992, had not been passed, subsection
(1) of section 6 which we have quoted affords a complete
answer to Mr Sakala’s arguments. It obliges that existing laws
be read so as to be conformable to the constitution so that the
word ‘adequate’ to qualify the compensation and the reference
of disputes to the court rather than to the National Assembly
would have had to be imported into Cap 296. This Act was not
unconstitutional for any of the reasons advanced by the
appellants. We do not understand the learned trial Judge to
have found that the Act was saved only by the late amendments
effected through the Statutory Instrument but if indeed this
was the finding, then we have no difficulty in affirming, as we
have done that section 6 (1) of Act No. 1 of 1991 had already
catered for this and any other existing laws in need of adaptation,
modification and so on. Of course, to any extent that any existing
law could not be made to conform, it would be void to the extent
of any such inconsistency, as provided by article 1 (2) of the
Constitution.
The appellants did not dispute the power of the President
under s. 6 (2) of Act number 1 of 1991 to amend laws. They
argued, however, that since the amendments affected
fundamental rights, only Parliament could legislate on such
matters when article 79 would have had to be complied with,
article 79 deals with alterations to the Constitution and the special
procedures needed for this, including a national referendum to
endorse changes to the part dealing with fundamental rights.
With respect to learned counsel for the appellants, the Lands
Acquisition Act is not part of the Constitution and is, on the
contrary, simply a law envisaged under the Constitution for
depriving persons of their fundamental right of owning property.
We agree with Mr Kinariwalla for the State that the Statutory
Instrument was amending an ordinary enactment, that is Cap

295, and had nothing whatsoever to do with amendments to the
constitution.
The second leg of the argument was that the statutory
instrument’s effective date could not be lawfully backdated so
as to adversely affect the appellants’ rights regarding the
quantum of compensation. Rule 1 (2) of the Statutory Instrument
reads:
1.(2) This Order shall be deemed to have come

into operation on the 30th August, 1991.
In Rule 3 of the order, s.12 of the Lands Acquisition Act (the

section setting out the principles governing compensation) was
amended so as to permit any assessment of compensation to
take into account..... by deduction no doubt ... any money used
in developing the land which was donated by the Government
and any companies which do not certify that their contribution
was specifically made for the use and benefit of the registered
owner. The evidence showed that the bulk of the money, if not
all, used to build the imposing complex the subject of this case
came from Government grants approved by the legislature during
the One Party era. We shall return to this aspect under another
ground of appeal. However, in relation to the backdating of the
Statutory Instrument’s effect, Mr Sakala relied on article 80 of
the constitution which provides for publication and the coming
into force of statutory instruments. He also relied on s.19 of the
Interpretation and General provisions Act, Cap 2. Subsection
(1) which is relevant to this discussion reads:
19. (1) Subject to the provisions of this section...

(a) the date of commencement of a statutory
instrument shall be the date of its
publication in the Gazette or, where a later
date is specified therein, such later date;
and
(b) every statutory instrument shall be deemed
to come into force immediately on the
expiration of the day next preceding the date
of its commencement.
The law is clear and Mr Kinariwalla’s argument that this

extraordinary statutory instrument should be treated on the same
footing as an enactment by Parliament cannot be entertained.
However, the question is whether a statutory instrument can
legally have or be given retroactive effect. We bear in mind
that in terms of s. 21 of Cap 2, a statutory instrument becomes
part of the written law and the question whether it is intended
to have retrospective effect is to be answered by the application
of principles identical with those by which the question is
determined in relation to statutes. We have lifted these
sentiments out of paragraph 747 of Halsbury’s Laws of
England, volume 36, 3rd Edition, A perusal of paragraphs 644
and 647 of the same reference book supports the view that
there is nothing objectionable to written laws having retroactive
effect, in relation to pending litigation and existing causes of
action, when they do not affect substantive rights or impose
new liabilities or when the new provisions can be classed with
provisions as to procedure only, In Elsie Moobola v. Harry
Muwezwa,27 we considered the introduction of new remedies
as falling to be classed with provisions as to procedure so that
the presumption against retrospective effect did not apply to the
distribution of the estate of a deceased husband which was to
be effected after the coming into force of a new enactment
which was not in operation when he died.
Two points emerge from what we have been saying. The
first is that statutory instruments can only come into force in
the manner ordained by the relevant section of Cap 2 and article
80 of the Constitution. Citing Johnson v. Sargant (8) as one of
their authorities Keir & Lawson, the learned authors of Cases
in Constitutional Law, 4th Edition, have this to say at page 25;
But there is this difference in the operation of

statutes and acts of subordinate legislation: a
statute takes effect on the earliest moment of
the day on which it is passed or is declared to
come into operation, while orders, regulations and
other acts of subordinate legislation take effect
only when they are published to the outside world.
This is a reasonable distinction, for whereas the
passing of a statute is invariably preceded by
prolonged and open discussion, many acts of
subordinate legislation are imposed on the public
without previous warning (see Johnson v.
Sargant (1918), 1 K. at p. 103, and Statutory
Instruments Act, 1946 S. 3)
27
(1990-1992) ZR 38.
We believe the foregoing answers the point about the coming

into force of the statutory instrument under discussion. The
second point is whether the Statutory instrument having come
into operation only when it was published, can have effect on
pending litigation such as this case where the issue of
compensation has not been litigated or adjudicated. Contrary to
the appellant’s submissions, the issue of compensation which
has not been litigated relates to a remedy on new principles of
assessment and the amendments effected to the Lands
Acquisition Act in such event will apply in accordance with the
reasoning in the Moobola case. In any even, the application of
the new principles of assessment can only be prospective on
the facts of this case although they will apply to an existing
cause of action. It will not be unlawful to make the deductions
now provided for. As will shortly appear when we come to the
fourth ground of appeal, the deductions can not be resisted on
other grounds to be discussed in a moment. In sum, we are
satisfied that the Lands Acquisition Act did not contravene the
spirit and intent of article 16 (1) of the Constitution as alleged in
the second ground of appeal. On the contrary, if we take the
liberty to borrow from the language of the headnote in Harel
Freres Ltd v. Minister of Housing,28 a case from Mauritius -
the procedure for the compulsory acquisition of land in Zambia
prescribed by the Lands Acquisition Act gives faithful effect to
the spirit and intent of article 16 (1) of the constitution. It gives
the landowner recourse to the courts to challenge the legality
and constitutionality of the compulsory acquisition and, in default
of agreement, the question of compensation can also be referred
to the courts. The ground of appeal in this behalf is unsuccessful.
The third ground of appeal alleged error on the part of the
learned trial judge when he held that the compulsory acquisition
of the appellants’ property had not been done in bad faith. it was
not in dispute that the Lands Acquisition Act gives the power to
the President to resolve in his sole judgment when and if it is
desirable or expedient in the interests of the Republic to acquire
any particular land. Quite clearly, a provision of this type does
not mean that the President’s resolve cannot be challenged in
the courts both as to legality and other available challenges
whereby arbitrariness and other vices may be checked. There
was no dispute on the law that the exercise of statutory powers
could be challenged if based on bad faith or some such other
28
[1988] LRC (const.) 472.
arbitrary, capricious or ulterior ground not supportable within
the enabling power.
The appellants alleged that the acquisition was based on an
ulterior motive or an intent simply to punish the appellants and
they relied on the evidence of two senior members of the present
ruling party, who confirmed that it was the publicly stated
intention of the MMD party even before it ascended to power
that it would retrieve properties acquired with public funds so as
to benefit the people of Zambia as a whole. The learned trial
Judge found that, far from demonstrating bad faith, the MMD
had demonstrated good faith to the extent that they did not plan
to take away indiscriminately all the appellants’ properties but
only those acquired or built with State money. The simple answer
to this ground was that the appellants did not discharge the burden
which was on them to demonstrate mala fides on the part of
the President. Their additional argument that the backdating of
the statutory instrument already discussed showed such bad
faith can not persuade us to their point of view. The Statutory
Instrument was issued and amendments to the Lands Acquisition
Act effected under powers lawfully available to the President
and the desire evinced therein to obtain full credit for State funds
utilised when computing the amount of compensation
demonstrated, in our considered opinion, the highest regard for
the interests of the Republic which would otherwise be called
upon to keep on paying several lots of public money when the
State had received no valuable or any consideration for the large
contribution originally made to the construction of the Complex.
The fourth ground of appeal alleged error on the part of the
learned trial Judge when he decided that a grant made by
parliament could be retrieved especially grants made to UNIP
‘if it can be shown that the sovereign or Parliament that granted
it was corrupt or that donations were made in circumstances
bordering on duress or undue influence.’ The argument was
that a grant, like a gift, once given can not be retrieved. Mr
Sakala submitted that there could have been no undue influence
in this case because of the intervention of an independent
parliament which authorised the grants. The learned trial Judge
had, in dealing with this case, made a lot of gratuitous and
uncomplimentary political remarks against the appellants. He
had at one point in the judgment specifically warned that he
intended to go astray and did so with a vengeance and in
unfortunate language, prompting Mr Sakala to claim that his
clients had not had a fair trial. All litigants are entitled to courteous
treatment, However, we do not see that the trial was necessarily
unfair especially that the issues were largely legal ones to be
decided on the law. Thus, although there was no evidence to
support an allegation of corruption, the point about undue
influence was quite valid. As we pointed out in Re pan
Electronics Ltd,29 where there is a relationship of trust and
confidence, and inexplicably large gifts are made, the presumption
of undue influence will be rebuttable only on proof of full, free
and informed thought on the part of the donor. It can not be
argued that gifts can never be retrieved since there are
exceptions, such as undue influence, which can vitiate the gift if
the donor who had acted to his prejudice repents of the
transaction. The evidence on record shows that the appellants
were in a position to and did dictate to the Government of the
day to transfer to themselves the land in question which had
previously been allocated to certain Ministries. We take judicial
notice that, during the One Party era, UNIP controlled and formed
the Legislature and the Government. Even the first appellant
enjoyed a special status as evidenced by amendments to the
Income Tax Act introduced by Act No. 12 of 1982 and Act No.
14 of 1987, both of which have since been replaced by Act No.
11 of 1992. The 1982 Act amended s. 41 of Cap 668 specifically
in relation to donations for the construction in Lusaka of the
headquarters of the United National Independence party which
were deductible as charitable donations. The 1987 Act added
Zambia National Holdings Ltd to the list of organisations whose
income was exempted from tax. In truth, there was between
the second appellant and the Government the plainest and clearest
fiduciary relationship which raised a presumption of undue
influence so strong that it could be rebutted only on the strongest
evidence. The intervention of an ‘independent’ Parliament which
was formed by the second appellant to authorise the Government
also formed by the second appellant to make the large donations
for which there was no quid pro quo of any kind can not
conceivably be regarded as evidence rebutting the presumption
and the irrefutable fact of undue influence. As long as there
was any sort of control by the ruling Party over the Government
and Parliament, the last two could not be regarded as having
been in a position to form an entirely free and independent
unfettered judgment. The gift or the grant in this case is
29
(1988 - 1989) ZR 19.
recoverable on behalf of the Republic quite independently of
the principles of assessment under the Lands Acquisition Act
and when coupled with those principles, the case for taking the
Government donations into account when computing the
compensation payable is, in our most considered view,
unanswerable and unassailable. Because it is unnecessary for
the decision here, we have refrained from discussing the
possibility that there was also a resulting trust on the facts
disclosed.
In any case, we consider that this is not unreasonable to
expect that any political party forming the Government and having
the control of public funds will consider itself as doing so in trust
for the people of this country and for their common advancement
benefit. The fourth ground of appeal also fails.
The fifth ground of appeal read that ‘the learned trial judge
erred and misdirected himself in law when he ruled that the
provisions of s.11 (4) of the Lands Acquisition Act which require
that possession of the land in dispute can only be taken after
payment of just compensation into court were not breached by
the respondent who entered the premises without fulfilling that
condition precedent’. The learned trial Judge in fact held the
view that the appellants were correct in contending that the
tender of compensation was a condition precedent to the taking
of possession but found that there was no need for such extra
payment when the complex had been constructed with
Government money.
Under s.11 of the Lands Acquisition Act which sets out the
procedures thereof, Subsection (1) deals with disputes other
than one relating to compensation; subsection (2) provides for
disputes as to the amount of compensation to be referred to the
court; subsection (3) which talked about the finality of any
compensation determined by the National Assembly was
repealed by statutory instrument No. 110 of 1992; while
subsection (4) and its proviso reads:
(4) The existence of any dispute as aforesaid shall

not affect the right of the President and persons
authorized by him to take possession of the
property:
Provided that where a dispute exists as to
the amount of compensation or the right to
acquire the property without compensation,
possession may be taken only after payment

of the amount regarded by the Minister as just
compensation...
(i) in the case of a dispute as to the amount of
compensation, to the person entitled to
compensation (or into court if the identity of
such person, or any question of apportionment,
is also in dispute);
(ii) in the case of a dispute as to the right to acquire
the property without compensation, into court.
At first glance, the proviso relied upon makes curious reading

since it seems to undermine the substantive provision. However,
guided by the attitude adopted by the Privy Council in
Commissioner of Stamp Duties v. Atwill and Others which
we have no reason to discount, we too consider that it is very
frequently the function of proviso merely to limit or qualify rather
than to add to the substantive provision. However, there may
be situations where a proviso will not necessarily have that
restricted effect. Having examined s. 11 (4) against the backdrop
of the scheme under the Act for the resolution of disputes, we
are satisfied that the proviso should be construed as having
qualified the substantive provision so as to introduce a procedural
condition precedent whenever there is a dispute. However, it is
also clear that the existence of a dispute in fact is a sine qua
non for the invocation of this proviso. On the facts of this
case, Mr Sakala was constrained to concede that the whole
argument may have been a moot point; there was no dispute
between the parties or before the court concerning the amount
of compensation within the intention of s.11. The parties had
neither agreed nor disagreed on any sum of money and they
specifically requested the court not to go into the question of
compensation which was postponed until after the determination
of the challenge based on legality and constitutionality. In any
event, it is unnecessary for the purpose of this judgment to
consider what would be the result if possession were taken
without a prior tender of compensation or if the State
contemplated an acquisition without compensation since no such
dispute exists in this case. The learned trial Judge was on firm
ground in his conclusion, though not in his reasons for the
conclusion. The acquisition here was not unlawful for want of
a prior tender of compensation.
(c) Compulsory Acquisition of property - procedures to be
followed under the Lands Acquisition Act
Van Blerk v. Attorney General and Another, Supreme Court Appeal

No. 138 of 2002
Court delivered by CHIRWA, JS]
This appeal is against the decision of the High Court which

dismissed the appellant’s claims involving Farm No. 4300,
Lusaka. The appellant, Jonathan Van Blerk, issued a writ of
summons in which he sought the following reliefs:
1) A declaration that the plaintiff (appellant) is still a leasee
or tenant of all that unexpired residue of all that piece
of land known as Farm No. 4300, Lusaka;
2) A declaration that the purported compulsory acquisition
of the said Farm No. 4300 was ultra vires the provisions
of Cap 189 of the Laws of Zambia and was therefore
null and void;
3) An injunction restraining the second defendant (2nd
respondent) from taking possession and consequently
demarcating and/or replacing and allocating the said
farm until the determination of the afore going questions;
or
4) That alternatively adequate compensation to be given
to the plaintiff (appellant) for the said compulsory
acquisition;
5) Any further relief and costs.
In dismissing the appellant’s claims, the learned trial Judge held
that the appellant’s failure to surrender the title deeds of the
said farm to enable the State to sub-divide and get the portion
compulsorily acquired caused the land to remain idle and not to
be used for the reasons it was compulsorily acquisitioned. That
the President acted in good faith in acquiring the land and that if
the appellant felt that the compensation was inadequate, he should
have appealed to the National Assembly as provided under the
law and that in any event the compensation was agreed upon
after evaluation of the said farm.
This is an old matter and we regret for the delay in rendering
our judgment, this is due to the court’s other pressing matters.
There are some facts common in this matter. The appellant

was a registered owner of leasehold of Farm No. 4300, Lusaka.
The President, in exercise of the power vested in him under
section 5 of the Lands Acquisition Act, Cap 289 then, did through
the Minister give his intention to acquire a portion from the said
farm, by notice dated 22nd April 1987. The total acreage of the
farm is 724 acres and the President wanted 351,2142 acres of
the said farm. Negotiations to rescind the acquisition decision
or compensation took too long but finally the parties agreed on
the sum of K540,000 as compensation. This compensation was
only paid in November 1989. For this late payment, the Minister
did agree to pay interest on it but this has not been done. Upon
the issuance of the acquisition notice, the appellant was requested
to surrender the title deed to the property to facilitate cancellation
of the same and demarcation of the farm to remove the acquired
portion of the farm but the appellant has to date not surrendered
the certificate of title.
From these common facts and findings of the lower court,
the appellant has filed four (4) grounds of appeal and these are:
1) The honourable trial Judge in the court below
misdirected himself both in law and fact when he failed
to appreciate that the compulsory acquisition was not
desirable or expedient.
2) The honourable trial judge in the court below
misdirected himself both in law and fact when he failed
to appreciate that the compulsory acquisition was not
done in good faith.
3) The honourable judge in the court below misdirected
himself both in law and fact by holding that the failure
to surrender the certificate of title was crucial to the
determination of the question whether compulsory
acquisition was desirable or expedient; and
4) That the learned trial Judge misdirected himself in fact
and in law in relation to the procedure for compensation.
The appellant and 2nd respondent filed written heads of arguments
on which they relied in addition to their oral submissions. The
1st respondent adopted the written submissions filed by the 2nd
respondent.
Grounds 1 and 2 were argued together. In arguing these
two grounds on behalf of the appellant, Mr Matibini submitted
that the learned trial Judge did not consider and appreciate the
circumstances of the compulsory acquisition in that had he done
so, he would have found that it was not desirable or expedient to
do so because after issuing the Notice the respondents did nothing
to develop the portion they acquired for the purpose for which
they acquired the property, namely building a housing estate. It
was argued that the enabling Act puts emphasis on the desirability
and expediency for the interest of the Republic to acquire the
land and that it is for the state to prove this desirability and
expediency. It was submitted that from the conduct of the State
in not utilising the land after Notice for compulsory acquisition,
the court should have found that the acquisition was not desirable
or expedient in the interest of the Republic and for this
proposition, the case of PATEL v. THE ATTORNEY-
GENERAL,30 was referred to. Added to this argument, it was
submitted that the decision of the President is open to challenge
in court for the court to determine whether the President
exercised his discretion properly and the case of ZAMBIA
NATIONAL HOLDING v. ATTORNEY-GENERAL,31 was relied
upon. Mr Matibini submitted that looking at the circumstances
of the case, the President did not exercise his discretion to
compulsorily acquire the land reasonably and as such the
acquisition should be quashed.
In answer to the arguments in support of grounds 1 and 2,
Mr Ngulube, for the 2nd respondent, submitted that the land was
properly acquired in the interest of the Republic for the purposes
of creating a housing estate which was for the benefit of the
Lusaka residents and community. It was argued that nothing
has been done since acquisition because there is in existence a
court injunction restraining the 2nd respondent from moving on
to the land in question and that even after the judgment in the
High Court, there was obtained a stay of execution of that
judgment. It was also argued that after the acquisition of the
land, the appellant was asked to surrender the certificate of title
to the land so that it is cancelled and sub-division done but the
appellant has not done so up to date. It was Mr Ngulube’s
further submission that the appellant has failed to establish mala
fide in the acquisition of the land. In the absence of evidence of
mala fide and on the evidence that the land was required in the
public interest to establish a housing estate, the learned trial
Judge was on firm ground to dismiss the action and allow the
acquisition to stand.
30
(1969) ZR 99.
31
(1993 - 1994) ZR 115.
In arguing ground 3, Mr Matibini for the appellant, submitted

that the learned trial Judge erred in law and fact in blaming the
appellant for not surrendering the certificate of title and as a
collateral to it, that the acquisition was not desirable or expedient.
It was argued that if the State was serious about the necessity
to acquire the land, it should have moved the Registrar under
section 84 of the Lands and Deeds Registry Act, Cap 185 to
call for and cancel the certificate of title if the appellant refused
or neglected to surrender the certificate of title. It was submitted
that failure to make such an application further demonstrates
the mala fide of the State in acquiring the land.
In answer to this ground of appeal, Mr Ngulube, for the 2nd
respondent submitted that the failure to surrender the certificate
of title cannot and should not be linked to the determination of
whether the acquisition of the land was desirable or expedient
as the desirability or expediency is determined at the time the
decision is made. It was further submitted that in the present
case, the appellant was asked to surrender the certificate of
title but he neglected and that failure to make an application
under section 84 of the Lands and Deeds Registry Act is not
fatal to the decision made by the President to compulsorily acquire
the land.
We will consider all the three grounds of appeal together and
in doing so we wish to go a little into the history of the matter
again. The appellant is a registered owner of Farm No. 4300,
Lusaka. On 22nd April 1987 the President gave notice, through
the Minister to acquire a portion of the said farm What followed
was the appellant’s appeal against the acquisition, which he did
personally and through the then Commercial Farmers Bureau.
These negotiations failed. Then came the question of
compensation. This too took long as the unexhausted
improvements on the farm had to be valued and it was finally
agreed at K540,000 and this was paid to the appellant in
November 1989. The appellant was not satisfied with this
amount and negotiations went on and finally the 1st respondent
agreed to pay interest on that sum since it took long to pay the
appellant. The interest was not indicated and no interest has
been paid.
To have redress, the appellant commenced an action against
the respondent by way of Originating Summons in February
1995. Among the reliefs prayed for was an injunction restraining
the respondents from taking possession and consequently
demarcating and/or replanning and allocation of the said farm.
This injunction was granted. At the hearing of the originating
summons, the same were dismissed. The appellant then applied
under Order 39 of the High Court Rules for review of the order
dismissing the Originating Summons. This application was also
dismissed. The appellant then issued a Writ of Summons against
the respondents asking for the same reliefs including an injunction.
The injunction was granted pending the determination of the
main action. Upon judgment in favour of the respondents, the
appellant obtained a stay of execution of the judgment pending
the determination of the appeal.
The appellant in his evidence gives the history of the matter,
more or less as we have outlined above. He then testified that
the acquisition of part of his farm should be declared to have
been done in bad faith because he was fully utilising the farm
and he believed that if the land were to be acquired, it must
have been acquired for such community use as hospital or for
some security reasons and put to use immediately to show
expediency.
On behalf of the respondents, evidence was led that the
requirements of the law were satisfied and that the land could
have been utilised for the purposes for which it was acquired
but the appellant failed to surrender the certificate of title. If
the whole farm was acquired, the certificate of title could have
been cancelled but because it had to be portioned, the parties
had to agree on demarcation and that is why the land was not
used, so the evidence stated.
We have considered the evidence and the correspondence
between the parties on record. From it, it is clear that upon the
land been compulsorily acquired following the provisions of the
law, the appellant was informed that the portion of land so
acquired was required for the Lusaka City Council to establish
a housing estate. From the evidence, it is clear that the intention
could not be carried out first, because the appellant failed or
neglected to surrender the certificates of title for the purposes
of marking off the acquired piece of land. There then followed
a period of negotiations during which the appellant was trying to
persuade the President to reverse his decision and when this
failed, the appellant resorted to court actions which included
injunctions. From the evidence, it is clear to us that, by conduct
and actions, the appellant prevented the respondents from
effecting their intentions. From the facts we cannot find the
President acted unreasonably. Not is there any evidence to

show undesirability or inexpediency in the acquisition of the land.
The appellant cannot have his cake and eat it. He caused the
inaction on the acquired piece of land. From the evidence, we
cannot fault the learned trial judge’s conclusions. We note from
the appellant’s arguments that the possible use of section 84 of
the Lands and Deeds Registry Act, Cap 185 by the respondents
was never raised at trial and only raised before us. We have
looked at section 84 of the Lands and Deeds Registry Act and
we fail to see under which provision of the section the
respondents would have moved the Registrar of Lands and
Deeds Registry to cancel the certificate of title. There was
nothing wrong with the certificate of title per se for the Registrar
to rectify, nor were there any entries on it wrong. The whole
certificate of title had to be surrendered by the appellant for the
Commissioner of Lands to cancel it and have the farm divided
according to the order of compulsory acquisition. There was no
default on the part of respondents in not using the provisions of
section 84 of the Lands and Deeds Registry Act because the
section does not apply in the circumstances of this case. We
therefore, see no merits in the grounds of appeal 1-3 and they
are dismissed.
Ground 4 of the appeal attacks the learned trial Judge on his
ruling on the procedure on compensation in that he held that if
the appellant was dissatisfied with the amount of compensation
he should have appealed to the National Assembly as provided
for under section 11(2) of the Lands Acquisition Act before
amendment. It has been submitted that the learned trial Judge
erred in so holding because the said section had been amended
by the deletion of sub-section 2 and as this was procedural
amendment, it had a retrospective effect to mean that amendment
to the law in 1992, should be taken to have been effective in
1987 when the compulsory acquisition was made, thereby making
it unnecessary for the appellant to go to the National Assembly
to seek further or better compensation. To support this
submission, Mr Matibini referred the court to Halsbury’s Laws
of England, 4th Edition Volume 4 at Paragraph 1287 and the
cases of ATTORNEY-GENERAL v. VERNAZZA and R v.
CHANDRA DHAMA.32 It was submitted that the lower court
erred in stating that the appellant failed to take the matter to the
National Assembly on the question of adequacy of compensation
32
[1906] 2 CB 335.
which was settled between the parties because the appellant
did indicate that the compensation was inadequate.
For the respondents, it was argued that at the material time
when the land was compulsorily acquisitioned, section 11(2)
was applicable and if the appellant was not satisfied with the
compensation, he should have taken the matter to the National
Assembly within six weeks of the notification and a claim now
was too late. It was submitted in the alternative that the amount
K540,000 compensation was agreed upon by the parties and
there was no need to go to the National Assembly. It was then
prayed that this ground of appeal be also dismissed.
We have considered this ground of appeal. In dealing with
this ground of appeal we have to look at the law as it was at the
time the compulsory acquisition was made. Section 11 (1) and
(2) provided as follows:
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 afore mentioned period of six weeks,
refer such dispute to the National Assembly
which shall by resolution determine the
amount of compensation to be paid.
The rights of the appellant at the time of the compulsory

acquisition of the property are as provided in the two sub-
sections; and the relevant Sub-section for this ground of appeal
is sub-section 2. The right was if the appellant was not satisfied
with the amount, he should have referred the matter to the
National Assembly for determination. It has been geniusly argued
that this is a procedural point which was amended by the repeal
of the sub-section by the Statutory Instrument No. 110 of 1992,

thereby making the matter still open to be decided. While
agreeing with authorities quoted to us by Mr Matibini on the
effect of amendments to procedure that may be retrospective
unless there are some good reasons or the Act itself says so, we
have great difficulty in accepting that the amendment of 1992
was procedural and therefore affected the position of the
appellant. The provisions of section 11 before amendments
gave rights to the affected persons, including the appellant. We
hold that was a right because, there was further provision under
sub-section 3 which provide as follows:
(3) No compensation determined by the National

Assembly under this Act shall be called in any Court
on the grounds that it is not adequate.
This, to us, shows that the legislature did not intend the provisions
to be procedural; they conferred a right that was meant to be
satisfied and final. We would not, therefore, agree that the
issue of compensation is still open after the provisions of the
law were satisfied.
In the present case, there is evidence that the amount of
compensation for the unexhausted improvements at the time
was agreed upon by the parties after evaluation of the
improvement. This to us is the market value at the time. The
1st respondent did agree to pay interest on the compensation
paid for the delay in effecting the same. This has not been
done, this is because, from the evidence of the 1st respondent,
the appellant was allowed to utilise the land on which he paid no
rent. Having looked at the claim as pleaded and on the evidence,
the ground of appeal also fails…
Following the dismissal of the appeal, the second respondent

(Lusaka City Council) proceeded to advertise for the plots on
the land which was in issue in this case (the ‘Baobab’ land)
without complying with the procedures spelt out under Circular
No. 1 of 1985. 33 This resulted into the Ministry of Lands
withdrawing the agency of the City Council in respect to the
‘Baobab’ Land.
33
This is discussed under Chapter 21 dealing with procedures on land alienation.
The case excerpted below illustrates the need to strictly follow
the statutory procedures prescribed under the Land Acquisition
Act for any purported compulsory acquisition to be valid. The
case also illustrates the point that statutes conferring powers
for compulsory acquisition are strictly construed by the courts.
If an order is made by the Minister without complying strictly
with some statutory requirement in the Act, the court will set
aside the order.
(d) Need to strictly follow the statutory procedures for

compulsory acquisition to be valid - Registered
mortgagees - persons interested in property to be
compulsorily acquired
Mpongwe Farms Limited (in Receivership) and Two Others v.

Attorney General – 2004/HP/0010
MWANAMWAMBWA, MS JUDGE: The applicants are seeking Judicial

Review of the decision by the Hon. Minister of Lands made on
8th August 2003. By that decision the Minister, on behalf of the
President, gave notice of intention to compulsorily acquire Farm
No. 4809, Ndola.
The applicants are seeking an order of Certiorari, to move
into the court, the decision in question for the purpose of quashing
it. Further on in the alternative, they are seeking a declaration
that Minister’s decision is null and void for illegality and
procedural impropriety; it having been made in breach of sections
5 and 7 of the Lands Acquisition Act, 1970, Cap 189 of the
Laws of Zambia.
The facts of the matter are as follows: the first applicant is
the registered owner of the said farm. The second applicant
holds a first mortgage on the farm. The secured sum is US$
626,000. The mortgage thereof is dated 14th July 1997. The
third applicant holds a second mortgage dated 13th October
1998, on the farm. The secured sum is US $485,000.
By a notice dated 8th August 2003, the Hon. Minister of
Lands stated her intention, on behalf of the President, to
compulsorily acquire the farm. There is conflicting evidence as
to whether the notice was published on 8th August 2003. The
State gave several reasons for the acquisition of the farm. These
are stated in paragraphs 9 - 16 of the opposing affidavit.
The State repeatedly adjourned the matter for the discussion

with a view to an amicable settlement. Nothing came out of
those adjournments. Then they stopped attending court
altogether. Hearing proceeded in their absence. However, I
note that they filed written submissions in response to the
applicants. I have examined the supporting and opposing
affidavits. I have also considered the parties’ written
submissions. I will deal with them in due course.
Judicial review will lie on any of the following three grounds.
One is illegality. This refers to a situation where an inferior
court or tribunal or public authority charged with a public duty
acts without, or in excess of its jurisdiction: see Council of
Civil Service Union and Others v. Minister for the Civil
Service and the Rules of the Supreme Court, Order 53/14/
28A.
The second is irrationality. This is unreasonableness verging
on absurdity. It is a situation where the decision challenged is
so outrageous in its defiance of logic that no sensible person
who applied his mind to the question to be determined, could
have arrived at it. This is what is known as the ‘wednesbury
unreasonableness.’ See Associated Provincial Picture House
Limited v. Wednesbury Corporation and Chitala v. Attorney-
General.
The third is procedural impropriety. This is failure to act
with procedural fairness towards the person who will be
affected. It also covers failure by an administrative tribunal or
authority to observe procedural rules that are expressly laid down
in the legislative instrument by which his jurisdiction is conferred.
Turning to this case, I shall deal with illegality and procedural
impropriety at one go. Compulsory acquisition of property by
the State is governed mainly by sections 5 and 7 of the Lands
Acquisition Act, 1970. These provide as follows:
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.
(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
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.
(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 therewith.
The question for my consideration here is whether the Minister

complied with sections 5 and 7 of the Act.
I agree with Counsel for the State that Judicial Review
towards Certiorari and related remedies, is a discretionary
remedy. A party is not entitled to it as of right. However, that
discretion must be exercised judiciously.
In the first place I agree with Mr Mulikita and Mr Mubonda

that the first, second and third applicants are persons interested
in the Farm and entitled to transfer it, within the wording of
section 5 (1) of the Act. The first applicant is such person
because it is the registered owner. The second and third
applicants qualify as such persons because they are registered
mortgagees.
I also agree with them that from the Lands Register, which
is kept by the Lands and Deeds Registry of the Ministry of
Lands, the Minister had constructive notice of the three applicants,
as such interested and entitled persons. She could have easily
ascertained their identities and status from the Register.
Section 5 (1) requires the Minister to give to the persons
interested in the property and to the persons entitled to transfer
the property. The section uses the word ‘shall’. It is clear that
this is a mandatory requirement.
All the three applicants in this matter are body corporates.
Therefore, they must be served with the notice in the manner
prescribed by section 7 (2) of the Act.
In my view, a notice under section 5 (1) is intended to inform
interested and entitled persons of the imminent compulsory
acquisition of property. Therefore, on the facts of this case, the
notice under section 5 (1) can only be operative and effective
as such if it was served on the three applicants, in the manner
prescribed by section 7 (2) of the Act. A ‘notice’ that is not
served does not constitute a ‘notice’ under section 5 (1) of the
Act. It does not satisfy the requirement of section 5 (1).
From the evidence on record, I find that the ‘notice’ attached
as exhibit ‘JK1’, to the State’s opposing affidavit was not served
on the three applicants in the manner prescribed by Section 7
(2) of the Act. Therefore, the purported notice was invalid. It
was not a notice for purpose of section 5 (1) of the Act. In
effect, sections 5 (1) and 7 (2) of the Act were not complied
with by the Minister.
Counsel for the State invited me to invoke section 7 (4) of
the Act. This subsection is set out above. It applies to a situation
where the notice under section 5 (1) was published but irregularly
served. It was meant to validate acquisition where there was
no proper service of notice. It was meant to cure irregular
service.
In the present case, as correctly argued by Mr Mulikita, there
was no service at all. There was not even irregular service. In
my view, there is nothing to cure. Therefore, section 7 (4) is of
no use to the State.
Publication of notice in the Government Gazette is a separate
legal requirement in addition to service under section 7 (2)
Publication alone is not enough.
Counsel for the State argued that despite breach of procedure,
the acquisition should be allowed to stand because it was done
in public interest. He referred me to the American Case of
Hawaii Housing v. Midkiff US 1984, 299. I do not accept this
argument. National interest, as the basis for acquisition, is an
issue that goes to the merits of decision. The merits of the
decision is not the concern of Judicial Review. Judicial Review
is concerned with the decision making process only. The State
itself passed legislation and devised statutory procedure to govern
compulsory acquisition of property. For whatever purpose such
property is acquired, the State must follow that law and
procedure. This what the Rule of Law entails.
Since the State did not comply with sections 5 (1) and 7 (2)
of the Act, I hold that it acted illegally in compulsorily acquiring
Farm No. 4809 Ndola. I also hold that there was procedural
impropriety. The State failed to follow prescribed procedure.
Therefore, I hereby issue an order of Certiorari; move into this
Court, the decision by the Minister and quash it accordingly….
The state in the above case gave several reasons for the
attempted acquisition of the land in issue.34 The reasons were:
(a) That the possession of the land was done with a view
to replanning it in the interest of the Republic.
(b) That part of the land for which title was issued was
already a subject of previous certificates of title and
thereby in effect creating title on title.
(c) That the land in issue was too large and was granted
contrary to Government policy of not granting more
than 250 hectares per person and that the land also
cut in half the chiefdom of Chief Lesa.
(d) That the land in issue included land where villagers
lived and have lived for generations and where they
had agriculture and burial grounds and shrines. The
land also included a resettlement scheme established
and developed by Government in extent of 22,700
hectares.
(e) That the granting of possession of the land in issue
whose extent was about 66,102,0429 hectares and
34
See affidavit in opposition to the application for Judicial Review filed into court.
bigger than the entire Lusaka Province was contrary

to natural justice, public policy and good governance.
(f) That the land had largely remained undeveloped and
unutilised though most of it was fenced and;
(g) That replanning of the land would promote harmony
between the applicants and the surrounding community
and assist in national development.
Following the failure by the state to successfully acquire Farm
No. 4809 on the grounds outlined in the judgment above, the
state again re-launched the compulsory acquisition process in
September 2006. This again prompted the applicants in the
above case to commence proceedings by way of judicial review
against the Attorney General.35 According to the press
statement issued by the Permanent Secretary in the Ministry of
Lands, the resolve to compulsorily acquire a portion of Farm
4809 arose ‘from the government’s desire to equitably allocate
land in the country.’36
The Lands Acquisition Act does not stipulate the purpose or
purposes for which the state may compulsorily acquire property.
This, however, as pointed out in the Wise case does not per se
give the State a blanket right to compulsorily acquire property
without any cause or purpose. The purpose of compulsory
acquisition must be a public one.
14.6 Summary of Chapter Fourteen

the right of eminent domain. The power of taking private property
for public uses generally termed as the right of eminent domain
belongs to every independent State. It is one of the incidents of
sovereignty. The law relating to compulsory acquisition of
property in Zambia is mainly contained under article 16 of the
1991 Constitution, as amended and the Lands Acquisition Act.
In general, security of rights in land under article 16 of the
Constitution is guaranteed as long as the land is put to good use
failure to which the rights could be abrogated. Under article 16,
any compulsory acquisition must be under a law which provides
for adequate compensation. There are, however, some
exceptions under the article where no compensation may be
made which include cases where land is abandoned, unoccupied,
unutilised or undeveloped, or is owned by a non-resident.
35
2006/HP/1058. At the time of writing the matter had not yet been adjudicated upon by the High Court.
36
See press statement, Times of Zambia, Saturday 23rd September 2006.
The Lands Acquisition Act provides the legal framework for
compulsory acquisition of property in Zambia. The powers
vested in the President under section 3 of the Act to compulsorily
acquire any property of any description whenever he is of the
opinion that it is desirable or expedient in the interest of the
Republic so to do, are very wide powers which may be used for
ulterior motives. As pointed out in the National Holdings
Limited case, a provision of this type can be challenged in the
courts if it is based on bad faith or malafides or some such
other arbitrary, capricious or ulterior ground not supported within
the Act. The provisions of the Act have to be strictly followed
adhered to in any compulsory acquisition as courts will generally
interpret penal statutes strictly. The Land Acquisition Act is silent
on the question of the purpose or purposes for which the State
may compulsorily acquire property upon payment of adequate
compensation. This does not, per se, as held in the Wise case,
give the State a blanket right to compulsorily acquire property
without any cause or purpose. The purpose of compulsory
acquisition must be a public one. The issue of public use or
what is desirable or expedient in the interest of the republic is a
judicial one and depends on the facts of each case. This has
been ably illustrated by the cases that have been excerpted under
the chapter.
521
Chapter Fifteen
PROTECTION OF TENANTS OF
RESIDENTIAL PREMISES IN ZAMBIA:
The Rent Act
15.0 Introduction
The Purpose of the Rent Act1 in general is for the protection of

tenants of dwelling houses. This protection is largely achieved
under the Act by limitation of rent payable for dwelling houses
and provision of a substantial measure of security of tenure for
tenants of dwelling houses.
At common law the relationship of Landlord and Tenant was
in general, one of contract. The learned authors of Megarry’s
Manual of the Law of Real Property, have observed that:
The modern tendency is to enact legislation

designed to protect tenants against their
landlords. At common law, the matter was in
general one of contract: provided a landlord did
not contravene the terms of his bargain, he might
at will evict his tenant, or under the threat of
eviction secure his agreement to pay an increased
rent of whatever amount he could exact.2
Parliament has sought to regulate the contractual relationship of

landlord and tenant, by way of legislation, in the field of residential
and business lettings, in order to protect the tenant who is in a
weaker bargaining power in relation to the landlord.
In England, the history of Rent legislation goes as far back
as 1915, when the Original Rent Act [The Increase of Rent and
Mortgage Interest (war restrictions) Act, 1915 was enacted.
This Act was an emergency measure intended to deal with
problems caused by wartime housing shortages, which in turn,
led to soaring rents.3
Security of tenure under the Act was mainly based on
preventing the landlord from evicting the tenant except on certain
specified grounds.4
1
2
Hayton, D., Megarry’s Manual of the Law of Real Property (6th ed.). London: ELBS, Stevens and Sons (1982),
p. 566.
3
See Woodfall, Landlord and Tenant, Volume 3 at Paragraph 23.002.
4
Megarry and Wade, Law of Real Property. London: Sweet and Maxwell (1999), at p. 1338.
15.1 Brief Background to Legislation Relating to Protection

of Tenants in Zambia
Legislation relating to protection of tenants of both residential

and commercial premises in Zambia may be traced back to
1968 when the Rent Control (Temporary Provisions) Act5 was
enacted. As per its title, the Act was a temporary one pending
the introduction of a comprehensive rent control legislation. At
the time the Bill was being presented in the National Assembly
the then Minister of Local Government, Mr Sikota Wina, informed
the House that the comprehensive legislation was in progress
but because of high rent levels which obtained in the three main
urban centres (Lusaka, Kitwe and Ndola) there was an urgent
need to prevent rents from rising still further and to provide
security of tenure to tenants of premises to which rent control
was to apply.6 The Act was only going to apply to the cities of
Lusaka, Kitwe and Ndola and to certain adjacent urban areas.
The Minister explained this selective application of the Act thus:
…it is here that the highest rate of development

has been experienced in the last few years and
where pressures for accommodation, both
residential and business, are at their greatest.
However, the bill provides in clause 3 for rent
control to be extended to other areas if this should
prove to be necessary.7
In Justifying rent control legislation the Minister explained:
Mr Speaker, the subject of rent control is

inevitably contentious and especially so in a
newly independent country where it is important
both to maintain the rate of capital development
and also to provide residential and business
accommodation at reasonable rentals to the
tenants.
It is often, Mr Speaker, argued that the
introduction of rent control leads to a loss of
confidence by commercial, industrial and building
interests and indeed this might well be so if the
5
No. 55 of 1968.
6
See Zambia, Hansard No. 16g, Daily Hansard, Wednesday, 16th October 1968, at p. 294.
7
Ibid.
PROTECTION OF TENANTS OF RESIDENTIAL PREMISES IN ZAMBIA: THE RENT ACT 523
form of rent control envisaged is unduly
restrictive.
This is not, however, the approach of the
Government which is concerned that there should
be a fair deal for both the landlord and the tenant
in the light of current economic conditions in the
country. This need to have a fair level of rents
and a fair and reasonable but not excessive return
on development, will I believe be established
when the comprehensive rent control legislation
is introduced.8
The preamble to the Rent Control (Temporary Provisions) Act

provided the objectives of the Act. The preamble provided that
it was:
An Act to make temporary provision for the

restriction of eviction from dwellings and
commercial premises; for the control of rents
and restriction of premiums; and for purposes
connected therewith.
The prescribed date of the Act was 1 April 1968. The first day
of April 1965 was chosen because it was approximately at this
time that publicity was first given to the intention to introduce
rent control legislation.9
Section 2 of the Act defined commercial premises to include
‘any building or part of a building or room let for business,
trade or professional purposes’. Section 2 further defined
‘dwelling’ to include ‘any building or part of a building or
room let as a separate residence whether or not such
building part of a building or room is occupied by one or
more tenants;’
In terms of application, section 3 of the Act provided that:
This Act shall not apply to –

(1) Subject to the provisions of subsection (3) this Act
shall apply to all dwellings and commercial premises
in the areas referred to or described in the Schedule
hereto,10 whether or not the terms of the letting of
8
Ibid.
9
Ibid., at p. 295.
10
The Schedule covered the greater Lusaka, City of Ndola, Township of Kalulushi, Nkana Mine Township and
Twapia Township Council.
such dwelling or commercial premises include the use

in common with the landlord or other persons
authorised by him of other rooms in or amenities of
or portions of the building of which the said dwelling
or commercial premises form part or the grounds or
gardens immediately adjacent thereto, and whether
or not the terms of the letting include the provision of
services or the use of furniture.
(2) The Minister may from time to time by statutory
instrument-
(a) apply all or any of the provisions of this Act to
any area in Zambia; or
(b) suspend the application of all or any of the
provisions of this Act to any area to which
such provisions previously applied, and may
after such suspension apply any provision of
this Act to such area or any part thereof.
(3) (1) (a) save as to the rent paid by the lessee, a
dwelling owned or held under a lease and let
to and occupied by an employee of the owner
or lessee as the case may be virtue of and as
an incident of such employment;
(b) save as to the rent charged in respect of any
authorised subletting of the whole or part
thereof, premises whether residential or
commercial let by the Government or a local
authority;
(c) premises in which an inclusive charge is made
for board and lodging and in respect of which
a permit in that behalf has been issued under
any law for the time being in force;
(d) premises held by the tenant under a lease for
a term certain exceeding twenty-one years.
Security of tenure under the Act was provided for under section
4. The section provided that:
(1) Where any premises to which this Act applies have

been let and on the termination, whether before or
after the commencement of this Act, of such tenancy
(in this Act referred to as the former tenancy) any of
the following persons remains in occupancy of the
premises or part thereof, that is to say–
(a) the tenant under the former tenancy;
(b) any person to whom the premises or part thereof
have been lawfully sublet;
(c) in the case of a dwelling, the widow of any such
persons as is mentioned in paragraph (a) or (b)
of this subsection residing with him at this death
or, if that person leaves no such widow or
widower, such member of his family residing with
him at his death as may be decided by the court
and who had been so residing for not less than
six moths prior to such death; then following
provisions of this Act shall apply in regard to the
recovery of possession of the premises or part
thereof and the control of rents and premiums.
(2) It shall not be lawful for the landlord of any premises–
(a) to enforce against the tenant otherwise than by
proceedings in the court his right to recover
possession of the premises; or
(b) to withhold or withdraw from the tenant any
services or furniture which are for the time being
provided for him, except to the extent authorized
by the court or for reasonable cause; and if any
person contravenes the provisions of this
subsection he shall, without prejudice to any
liability or remedy to which he may be subject in
civil proceedings, be guilty of an offence and liable
on conviction to a fine not exceeding five hundred
kwacha or to imprisonment for a term not
exceeding six months or to both such fine and
imprisonment.
(3) In any proceedings for an offence under this section
it shall be a defence to prove that the landlord believed
and had reasonable cause to believe that the tenant
had caused to occupy the premises.
(4) If any person, with intent to cause the tenant of any
premises to give up his occupancy thereof or any
part thereof, does any act calculated to interfere with
the beneficial use or enjoyment of the premises by
the tenant or members of his household or staff he
shall be guilty of an offence and liable on conviction
to a fine not exceeding one thousand kwacha or to
imprisonment for a term not exceeding one year or
to both such fine and imprisonment.
(5) Where an offence under this section committed by

a body corporate is proved to have been committed
with the consent of or connivance of, or to be
attributable to any similar officer of the body
corporate or any person who was purporting to act
in any such capacity, he as well as the body corporate
shall be guilty of that offence and shall be liable to
be proceeded against and punished accordingly.
(6) Notwithstanding the provisions of paragraph (a) of
subsection (2) it shall be lawful for the landlord of a
dwelling to recover possession from the tenant
thereof without recourse of proceedings in the court
if –
(a) such dwelling is the normal residence of the
landlord and is let to the tenant for a period
during which the landlord is temporarily absent
therefrom for good and sufficient personal,
business or professional reasons, and prior to
the agreement for such letting being entered
with the Rent Controller; or
(b) prior to the coming into operation of this Act
such dwelling was let in circumstances such as
are referred to in paragraph (a) of this
subsection and the Rent Controller certifies in
writing that if this Act had been in force at the
relevant time he would have approved and
registered such letting.
Section 6 of the Act provided for prohibition of payment of rent

in excess of prescribed rent. Section 7 of the Act provided for
the appointment of rent controllers whose functions, duties and
powers included making valuation assessment and carrying out
any function or duty specified under the Act. In terms of section
8 of the Act, the Act was, unless previously amended or repealed,
to continue in force until the end of the year 1969.11
15.2 Objectives of the Rent Act
The Rent Act was enacted in 1971. In presenting the Rent Bill
in the National Assembly, the then Minister of Local Government
and Housing, Mr Peter Matoka, had this to say:
11
See the cases of Lusaka Auctioneers and Estates Agents Limited v. Morton Estates Limited [1977] ZR 92 and
Krige and Another v. Christian Council of Zambia [1975] ZR 152, where the Act was in issue and/or discussed.
Mr Speaker, Sir, this Bill, the Rent Bill, 1972, is the
promised Bill relating to residential premises and,
as the Landlord and Tenant (Business Premises)
Act, 1971, came into force on 1 January 1972, the
enactment of this residential premises Bill will mean
two things. First, that as intended in 1968, the Rent
Control (Temporary Provisions) Act, 1968, will
cease to have any further effect and, secondly,
that for the first time since Independence, firm
foundations will have been established for lasting,
mutually satisfactory relationships between
landlords and tenant of all type of rented properties
throughout the Republic of Zambia.
Sir, when I say ‘mutually satisfactory
relationships’, I mean conditions which are fair both
to tenants and to landlords, conditions, Sir, which
will provide all tenants of unfurnished or furnished
accommodation with security from arbitrary
eviction, and with freedom from any risk of being
required to pay an excessive rent; yet, Sir, at the
same time, conditions which will continue to
provide full encouragement to landlords to continue
to construct all types of residential accommodation
for rental, and to continue to maintain them in a
sound state of repair. Mr Speaker, Sir, the right of
every person to continue to live in his or her home
without fear of eviction is a basic human right but
it is also a right which, unless a person is an owner
of his or her home, carries with it an obligation to
continue to pay a proper rent to the landlord and to
care for the rented property in a proper manner.
What this Bill seeks to do, therefore, is to confer
this right and this obligation on every tenant of
residential property, whether it is unfurnished or
furnished, but at the same time to oblige a landlord
not to charge rent in excess of a specified amount;
and not to evict or distrain without an order of the
court.12
The preamble to the Rent Act generally gives the scope and
objectives of the Act. The preamble provides that it is:
12
Official Verbatim report of Parliamentary Debates of the Fourth Session of the Second National Assembly, 12th
January, 9th March 1972, Lusaka. Government Printer.
An Act to make provision for restricting the

increase of rents, determining the standard rents,
prohibiting the payment of premiums and restricting
the right to possession of dwelling houses, and for
other purposes incidental to and connected with
the relationship of landlord and tenant of a dwelling
house.
15.3 Scope of Application of the Act
Section 3 (1) provides for the scope of application of the Act.

Section 3 (1) and (2) of the Act provide that:
(1) Subject to the provisions of subsection (2), this Act

shall apply to all dwelling-houses in Zambia, whether
or not the terms of the letting of such dwelling-houses
include the use in common with the landlord or other
persons authorised by him of other rooms in or
amenities of or portions of the building of which the
said dwelling-house forms a part or the grounds or
gardens immediately adjacent thereto, and whether
or not the terms of the letting include a provision for
services or the use of furniture.
(2) This Act shall not apply to-
(a) a dwelling-house let to or occupied by an
employee by virtue and as an incident of his
employment;
(b) premises let by the Government save as to the
rent charged in respect of any authorised
subletting of the whole or part thereof;
(c) premises for which an inclusive charge is made
for board and lodging and in respect of which a
permit in that behalf has been issued under any
written law for the time being in force;
(d) premises held by the tenant under a lease for a
term certain exceeding twenty-one years.
15.4 Powers of Court
The court has wide powers under section 4 of the Act which
include powers to determine the standard rent of any premises
either on application of any person interested or on its own motion,
fixing the date on which standard rent is payable, to apportion
payment of the standard rent amongst tenants sharing the
occupation thereof, to make an order for recovery of possession
of premises and an order for recovery of arrears of standard
rent, and mesne profits, to order landlord to carry out repairs for
which he is liable if he fails to do so and to permit the levy of
distress for standard rent.
The Court has powers under section 5 of the Act to investigate
any complaint relating to the tenancy made to it either by the
landlord or a tenant of such premises.
15.5 Fixation of Standard Rent and Restriction on Increase

of Rent
In terms of section 8 (1) of the Act, the duty to apply to Court

for standard rent lies on the landlord and this should be done
either before letting the premises or within three months of the
letting. Failure to comply with this requirement is criminalised
under section 8 (2) of the Act.
Section 9 provides one of the most important protections
afforded to a tenant by the Act. The section restricts the increase
of rent in excess of standard rent. The section provides that:
9. subject to the provisions of this Act, the landlord

of premises shall not be entitled to recover any
rent in respect thereof in excess of the standard
rent.
15.6 Penalty for Demanding or Accepting Excess Rent and

Permitted Increases in Rent
Section 10 criminalises the demanding or accepting of rent in

excess of the standard rent or an advance of rent exceeding
two months standard rent.
Section 11 provides for instances when the landlord may
increase the standard rent. These include increase in rates
payable by the landlord, where the landlord incurs expenditure
on the improvement or structural alteration of premises or in
connection with the installation or improvement of a drainage or
sewerage system or the construction or making good of a street
or road executed by or at the instance of a local authority. The
amount of increase in such a case is calculated at a rate per
annum not exceeding 15 per cent of the expenditure so incurred.
15.7 Restrictions on Right to Possession and on Levying of

Distress for Rent
Section 13 of the Act provides another important protection

afforded to a tenant. The section confers security of tenure on
the tenant by circumscribing the instances in which the tenant
can be deprived of possession or forcibly removed by order of
court.
The circumstances under which a tenant may lose possession
under section 13 include; default in payment of rent or non-
compliance with the terms of the tenancy, being guilty of creation
of nuisance or annoyance to adjoining occupiers, being convicted
for using the premises for a criminal or illegal purpose, permitting
the premises to deteriorate owing to acts of waste or neglect,
the serving of notice to quit by the tenant on the landlord and in
consequence of which the landlord has contracted to sell or let
the premises or takes any steps as a result of which he would, in
the opinion of the court, be seriously prejudiced if he could not
obtain possession, subletting the whole or any part of the premises
for a rent in excess of rent recoverable under the provisions of
the Act, the dwelling house is reasonably required by the landlord
for occupation as a residence for himself or his wife or minor
child, the subletting, assignment or parting of possession by the
tenant without the written consent of the landlord, and to enable
the carrying out of any reconstruction or rebuilding of the
premises.
The taking of possession or ejectment of a tenant can only
be done through the Court which has to be satisfied with the
ground advanced for the intended possession or ejectment.
Section 14 of the Act provides yet another important protection
afforded to the tenant. The section restricts the levy of distress
for rent. The Section Provides:
14. No distress for the recovery of rent in respect

of any premises shall be levied except with the
leave of the court.
15.8 Restrictions on Premiums
Section 15 of the Act places a restriction on premiums. The

section provides that:
(1) No person shall, as a condition of the grant,
assignment, renewal or continuance of a tenancy,
lease, sublease, subletting or occupation of any
premises, require the payment of or take any fine or
premium or other like sum, or any pecuniary
consideration, in addition to the standard rent; and
where any such payment or consideration has been
made or given in respect of any premises under an
agreement made after the prescribed date, the amount
or value thereof shall be recoverable by the person
who made such payment or gave such consideration.
In terms of section 15 (2), the demanding or taking of any

payment or consideration in contravention of section 15 (1) is
criminalised.
15.9 Repairs
In terms of repairs, section 24 of the Act provides that:
In the absence of any provisions to the contrary in

the contract of tenancy, for the purposes of this
Act it shall be deemed to be the obligation of the
landlord of any premises to maintain and keep the
premises in a state of good repair and in a condition
suitable for human habitation; and it shall be deemed
to be the obligation of the tenant of any premises
to maintain the premises in the same state as that
in which the premises were at the commencement
of the tenancy, fair wear and tear, damage arising
from irresistible force and the repairs for which
the landlord is liable excepted.
15.10 Restriction on Right to Assign or Sublet Premises and

Subletting by Tenant
Section 25 of the Act restricts the tenant’s right to assign or

sublet the premises. The section provides that no tenant shall
have the right to assign, sublet or part with the possession of
any premises or any part thereof except with the consent in
writing of the landlord or where such consent is unreasonably
withheld the consent of the court.
Section 26 (1) Provides for instances when the tenant may

sublet. Section 26 (1)(a) and (b) provides that:
(1) Notwithstanding anything contained in this Act, the

tenant of any dwelling-house may
(a) with the consent in writing of the landlord (which
consent shall not be unreasonably withheld); or
(b) in any case where, in the opinion of the court, the
consent of the landlord has been unreasonably
withheld, with the consent of the court; sublet for
a period of not more than six months (which period
may with the consent of the landlord or of the
court be extended for a further period of three
months) any dwelling-house of which the tenant
is in personal occupation; and upon the expiration
of the period for which such dwelling-house has
been sublet, the tenant shall be entitled to resume
personal occupation of the dwelling-house.
15.11 Amendment Act (No. 12) of 1974 (Local Authorities and

National Housing Authority)
Act No. 12 of 1974 amended the Rent Act. Section 3 of the Act
was amended to include other situations where the Act does not
apply. These are premises let by any local authority and National
Housing Authority. Section 32A of the Act, as amended provides
that:
(a) A Local Authority or National Housing

Authority shall have the power to evict tenants
from premises let to him without having to
institute proceedings in court in that behalf if
the tenant is in arrears of rent for a period of
not less than three (3) months.
(b) Evict without court proceedings if a tenant
has sublet the premises without prior consent
in writing provided he is given one month
notice to remedy the breach.
(c) To levy distress upon the goods in the
premises let to the tenant for recovery of any
rent due to it from the tenant without order of
Court.
Regulations have been made pursuant to section 31 of the Act
on how evictions should be carried out. 13 Every eviction order
shall be signed by the Town Clerk or an equivalent officer or in
case of National Housing Authority by the Chief Executive
Officer. Every such eviction shall be personally supervised by
the Director of Housing or an equivalent officer or any officer
not below the rank of housing officer.
Under the regulations an eviction shall be unlawful unless:
(a) before the eviction, the eviction officer has suitably
identified himself and has produced copy of the eviction
order to the tenant or occupier
(b) there is present at the time of eviction a police officer
(c) the eviction takes place between the hours of sunrise
and sunset.
15.12 Enforcement of the Act
In terms of enforcement of the Act, apart from the wide powers

vested in the Court, section 30 provides for rent controllers whose
duties include making valuation assessment and carrying out
any function or duty specified under the Act.
15.13 Evaluation of the Act
In his evaluation of the Act, Mulimbwa observed that the Act

has to all intents and purposes fallen into desuetude. He observed
and commented thus:
A short evaluation of this Act reveals that it has

had the least impact. An attempt was made in the
early seventies to appoint rent controllers, but the
exercise failed. The sheer enormity of the court’s
task, in the absence of rent controllers, made it
impossible for the courts to exercise supervision in
the absence of any specific legal action by an
interested party and shortly, there other reasons,
that the post-independence government under after,
the Act fell into oblivion. It is due to the failure of
this Act, among UNIP introduced its reforms under
the Lands (Conversion of Titles) Act of 1975. It
has only been discussed here because the repeal
of the 1975 Act under which the President could
determine the rent as between private landlords
13
See the Rent (Local Authorities and National Housing Authority Defaulters Eviction) Regulations, 1974
- Statutory Instrument Number 123 of 1974.
and tenants, and the absence of such power under

the current Land Act leaves a gap which could be
filled by the Rent Act. It would be safe, however,
to conclude that, to all intents and purposes, the
Act has fallen into desuetude.14
There is no doubt that the Rent Act is out of touch with the
realities on the ground today. Under section 11 of the Act,
standard rent can only be increased in the circumstances
circumscribed under the section. In delivering its judgment in
Nip v. Zambia State Insurance Corporation Limited,15 the
Supreme Court bemoaned the present system under the Act of
determining Standard rent. The Supreme Court observed and
commented thus:
We would mention that the present provisions for

increasing the standard rent completely ignore the
present rate of inflation and the learned law officers
of the state may consider that alterations in the
law are made appropriate.16
After all has been said, it is difficult not to agree with Mulimbwa’s
observations, that the Rent Act has fallen into desuetude.
15.14 Case Law
(a) Application of the Rent Act - The Act does not apply to
premises let or occupied by an employee by virtue and as
incident of his employment
National Housing Authority v. Siamiaze and Another - SCZ APPEAL

No. 49 of 1997
[The facts of the case appear from the Judgment of SAKALA JS as he

then was]
This is an appeal against a judgment of the High Court

Commissioner in which he decided that the Respondents ought
not to suffer distress since they are not the tenants but just
employees of the Appellant’s tenant.
14
Mulimbwa, A.C., ‘Land Policy and Economic Development in Zambia’, Zambia Law Journal (Special Edition),
(1998), p. 98.
15
(1993/94) ZR 144. The case is excerpted under chapter 5 of this book dealing with leases and licences.
16
Ibid., p. 149.
The facts of the case are common cause. The 1st Respondent
is employed by the Lusaka Co-operative Union Limited. The
Union is the tenant of the house in which the 1st Respondent
resided with the 2nd Respondent by virtue of her employment
with the Union. On a date unclear from the records the Appellant
evicted the Respondents from the house and confiscated the
Respondent’s personal effects in order to recover rent from the
Union, the tenant of the house. On 17 August 1995 the
Respondents issued a specially endorsed writ claiming for the
return of the confiscated household effects. In an application
under Order 13 the Deputy Registrar entered judgment in favour
of the Respondents. On appeal to the High Court Commissioner,
the Deputy Registrar’s judgment was upheld. Hence this appeal
to this court.
Counsel for the Appellant, Mr Nyangulu filed written heads
of arguments consisting of one ground of appeal. The gist of
the submission on this ground centered on the proviso to section
32A(i)(c) of the Rent (Amendment) Act No. 12 of 1974 which
empowers among others the Appellant to levy distress upon the
goods lying in the premises let to a tenant by the Appellant for
the recovery of any rent due to it from a tenant without having
to obtain any order from any court. As to the interpretation of
section 32A(i)(c ) of that Act, we totally agree with the learned
counsel’s submissions as contained in the heads of argument
that the applicable section defines a ‘Tenant’ as including a ‘Sub
Tenant’. But the issue in the present appeal does not centre on
the interpretation of section 32A(i)(c ). The issue is whether
the Act applies to the facts of the present case. The court drew
Mr Nyangulu’s attention to section 3 (2)(a) of the Rent Act Cap
206 (New Edition) of the Laws of Zambia. The section reads
as follows:
This Act shall not apply to:

(a) a dwelling –house let to or occupied by an
employee by virtue and as an incident of his
employment.
After counsel carefully considered this section, he quickly

indicated that he was abandoning the appeal. In our view, this
was the proper course to take in the face of the clear provisions
of the law. The facts not in dispute clearly showed that one of
the Respondents occupied the house in question by virtue of her
employment. Under section 3 (2)(a) of the Rent Act, her goods
would not be the subject of distress. The appeal is therefore

dismissed and the costs will follow the event.
(b) The Purpose of the Rent Act is for the Protection of

Tenants
Drake v. M.B.L. Mahtani and Another (1985) ZR 236
In Lily Drake v. M.B.L Mahtani and Another, the respondents

obtained from the High Court an order for possession of a flat
let to the appellant on the grounds that the premises were required
by the landlord for occupation by the landlord’s employees under
s.13 (1)(e) of the Rent Act. At the trial the Managing Director
of the second respondent, who was proved to be the owner of
the premises, gave evidence that the premises were required
for occupation by unspecified employees of unspecified
companies which were members of a group of companies to
which the second respondent belonged. There was no evidence
that the premises were required for an employee or employees
of the second respondent company itself. The action was
commenced by a Writ of Summons for possession and was
argued on behalf of the tenant that it should have been
commenced by originating notice of motion. It was also argued
that the notice to quit was invalid because it did not specify the
reason why the landlord required possession. The trial judge
commented adversely on the appellant’s claim to the protection
of the Rent Act and referred unfavourably to her asking the
Court ‘to grant her the valuable status of irremovability by reason
of her inadequate income.’ The case is excerpted below.
GARDNER, JS: On the hearing of this appeal we gave judgment

for the appellant and indicated that we would give our reasons
later. We now give our reasons.
This is an appeal against judgment of the High Court giving
to the second respondent an order for possession of Flat No.11
Madhur Court, Ndola. There was evidence that in May 1967,
one L.T. Mahtani let the premises to the appellant and after the
death of Mr L.T. Mahtani the first respondent served a notice
to quit on the appellant and all the other tenants on the 15th of
June, 1974, with an offer of new tenancy at increased rents.
The offer of a new tenancy was refused by the appellant but
she continued to occupy the premises under the Rent Act Cap
438. In passing we would comment that the term ‘Statutory
tenant’ has been criticised on the grounds that a former tenant
holding over under the protection of the Rent Act is not a
tenant, but a person with a personal right to continue to occupy
the premises. This is a valid criticism but no one is misled by this
commonly used term and it is appropriate in this case to say that
after the first notice to quit the appellant continued to occupy
the premises a statutory tenant.
On 6th September, 1976, a further notice to quit was served
on the appellant by the first respondent requiring her to vacate
the premises and a writ was issued by the first respondent in the
High Court claiming possession of the premises. Subsequently
leave was given for an amendment of the writ by adding the
second respondent on the grounds that the premises had been
assigned by the first respondent to the second respondent on
the 23rd October, 1980.
In the statement of claim it was pleaded that the notice to
quit was in accordance with section 13 (1)(e) of the Rent Act.
This section reads as follows:
13 (1) No order for the recovery of possession of

any premises or for the ejectment of a tenant
therefrom shall be made unless - (e) the dwelling-
house is reasonably required by the landlord for
occupation as a residence for himself or for his
wife or minor children or for any person bonafide
residing or intending to reside with him, or for some
person in his whole-time employment or for the
occupation of the person who is entitled to the
enjoyment of such dwelling-house under a will or
settlement, and the landlord has given to the tenant
not less than twelve months notice to quit; and in
such case the court shall include in any order for
possession a requirement that the landlord shall
not without its prior approval let the premises any
part thereof within three years after the date on
which the possession is to be given.
At the trial, Mr R.L. Mahtani the General Manager of the second

respondent gave evidence. In the record such evidence appears
as follows:
Q: Mr Mahtani why did you need the premises?

A: To house employees of the group companies my Lord.
Q: For the employees of the plaintiffs?
A: Yes my Lord of companies where the plaintiff have
an interest.
The following extracts appear in the record of the cross-

examination of this witness:
Q: You are saying that there was an assignment of this

property to Professional Services Limited?
A: That is true my Lord it was sometime in October,
1980.
Q: That was after you issued the notice to quit to the
defendant?
A: That is true my Lord.
Q: Is it not true that in fact the other flats you are
referring to are in fact rented to ZCBC.
A: There is one or two flats I think rented to ZCBC on
the understanding that a group company Copper
Harvest producing goods for ZCBC but for Copper
Harvest it is all within the group - group companies
of Mahtani.
After hearing the evidence the learned trial Judge in his judgment
said:
The reason given by the defendant for her refusal

to move is that her income is inadequate. In other
words because of her inadequate income she is
asking the court to grant her that valuable status
of irremovability. That in my view would be far-
reaching. Such reason does not truly convince the
court that her contractual tenancy cannot be
terminated.
The learned trial Judge then made an order for possession of

the premises in favour of “the plaintiff”, without saying which
one, and said ‘for these reasons I hold that the defendant is not
protected by section 13 (1)(e) of the Rent Act.’ It is against that
order that the appellant now appeals.
At the outset of the appeal Mr Kafunda on behalf of the
appellant raised a preliminary objection to the form of the
proceedings to commence the action. This objection was not
raised before the trial in the High Court nor was it one of the
grounds of appeal in the memorandum of the appeal and the
heads of arguments. However, we allowed Mr Kafunda to argue
this objection and he drew our attention to the provisions of the
Rent Rules 1973 made under the Rent Act. Rule 3 provides
that a complaint or application to the court under the Act shall
be commenced by an originating notice of motion. Furthermore,
Mr Kafunda pointed out that the definition in the Rent Act of
‘court’ reads:
(a) In relation to premises for which the rent

demanded exceeds K3,600 per annum the
High Court:
(b) In relation to all other premises a Subordinate
Court of the first class to be presided over by
a senior resident magistrate or a resident
magistrate.
In this case the premises were let at a rental of K60.00 per

month and therefore, Mr Kafunda argued, the action should not
have been commenced in the High Court. Mr Mwanawasa on
behalf of the respondent maintained that he was not making an
application under the Rent Act but was merely claiming
possession. And that Order 6 Rule 1 of the High Court Rules
provides that except as otherwise provided by any written law
or by the Rules every action in the Court shall be commenced
by writ of summons.
We have compared the provisions of the Rent Act and its
Rules with those of the Landlord and Tenant (Business Premises)
Act Cap 440 which are in similar terms as to the making of
applications by originating notice of motion. As we pointed out
in the case of Appollo Refrigeration Services Limited v.
Farmers House Limited17 none of the applications mentioned
in the Landlord and Tenant (Business Premises) Act provides
for an application for possession. Consequently a claim for
possession of business premises must be commenced by writ.
In the Rent Act, however, sub-sections (6) and (7) of section 13
both refer to landlords obtaining orders for possession ‘under
this section.’ The use of these latter words envisages applications
for possession under section 13 despite the fact that at first
sight the section appears to be a prohibition section and not an
17
(1985) ZR 182.
enabling section. In view of the fact that applications for

possession are envisaged under that section Rule 3 relates to
such applications. Consequently as that rule provides for the
commencement of applications by originating notice of motion
the exception to Order 6 Rule 1 applies and the matter is not to
be started by writ of summons. We appreciate that these
technicalities may not always be clear and for that reason it has
always been the practice of this court to allow amendment of
proceedings which have been incorrectly commenced so long
as no injustice is done to the parties. In this case no injustice will
be done to the appellant by allowing the respondents to amend
their form of action to one of originating notice of motion. We
accordingly allow such an amendment.
With regard to Mr Kafunda’s argument that in any event the
matter should have been started in the Subordinate Court and
not in the High Court, this is a matter which goes only to the
question of costs. The appellant was entitled to make an
application to transfer the case to the Subordinate Court if she
so desired, but the respondents must bear the consequences of
their choice to commence the proceedings in the High Court so
far as costs are concerned. If they are successful, subject to
any argument as to the complexity of the case justifying increased
costs, the costs should be awarded at no more than the
Subordinate Court scale. If they are unsuccessful however, the
costs should be awarded against them on the High Court scale.
The first ground of appeal put forward by Mr Kafunda was
that the notice to quit served on the 6th September, 1976 did not
indicate the reasons why the respondents required the premises,
that is for occupation by their employee. Mr Mwanawasa argued
that as twelve months notice to quit was given and sub-section
(e) of section 13(1) is the only sub-section requiring twelve
months notice, it should have been clear to the appellant what
were the grounds of the application. In view of the fact that the
subsection allows a landlord to obtain possession if the premises
are reasonably required by the landlord as a residence for himself
or his wife or minor children or for an employee, we would not
agree that the giving of twelve months notice drew the attention
of the tenant to the precise reason for the landlords requirement.
However, we are satisfied that the situation is not the same
as in the case of the Landlord and Tenant (Business Premises)
Act, in which a landlord requiring possession must give a notice
in the form set out under the Rules made under that Act, which
provides for the landlord to set out the grounds on which he
would oppose an application for a new tenancy. Under the Rent
Act, section 13 (1)(i) is a provision enabling the landlord to obtain
possession when he requires the premises to enable
reconstruction or rebuilding thereof to be carried out. The sub-
section provides that a landlord may exercise such right when
he has “given to the tenant not less than six month’s notice in
writing of such requirement.” Those last words are not included
in section 13 (1)(e). There is therefore, no requirement that a
landlord requiring possession under the latter sub-section must
give his reason for such requirement and the notice to quit in
this case was not ineffective by reason of the fact that no
grounds were given for requiring possession. There is no merit
in the appellant’s complaint about the contents of the notice to
quit and this ground of appeal must fail.
We would further point out that it is the duty of a plaintiff to
indicate in his Statement of Claim the reason for requiring
possession. In this case clause 6 of the respondent’s statement
of claim reads: ‘the notice to quit and the termination of the
tenancy were done in accordance with section 13 (1)(e) of the
Rent Act.’ As we have pointed out, that subsection provides for
a landlord’s requiring possession for himself, his wife, his minor
children or an employee and, as drawn, the statement of claim
gives no indication of the precise reason for the landlords’
requiring possession. This should have been done, but as the
appellant did not raise the issue the point is not material in this
case.
We come now to the argument that there was no evidence
that the employees of the second respondent were to be
accommodated in the premises. The record shows that the
evidence was only that the premises were required for employees
of the respondent’s group of companies. It is clear that nowhere
did the General Manager of the second respondent claim that
the premises were required for employees of his particular
company, that is Professional Services Limited. We are satisfied
that the premises were assigned to the second respondent who
became the landlord for the purposes of section 13 (1)(e). There
is no doubt that the second respondent is an entirely separate
legal entity from the first respondent and it is essential, to satisfy
the requirements of section 13 (1)(e) as to persons in
employment, that such persons must be in the employment of
the particular landlord. In the Scottish case of Grimond v.
Duncan18 under the Rent and Mortgage Interest Restriction

(Amendment) Act 1933, the provisions of which were to all
intents and purposes identical to section 13 (1)(e) of the Rent
Act, a landlord brought an action of summary ejection against
tenant. She averred that the house was reasonably required by
herself and her two sisters for occupation by a ploughman who
was in the whole time employment of herself and her two sisters.
It was held in that case that the ploughman was not in the whole-
time employment of the landlord, his engagement being either
with the partnership or joint venture consisting of the three sisters
as separate individuals. We agree with the principle set out in
that case and the comment in Megarry’s Rent Acts (9th Edition)
at page 253: ‘There must be complete identity between the
employer and the landlord.’ In this case therefore in order to
take advantage of the provisions of section 13 (1)(e) of the
Rent Act, the second respondent would have had to bring
evidence that the premises were required for an employee of its
own and not generally of a family group of companies. This the
second respondent did not do and there was no proof to satisfy
the provisions of section 13 (1)(e).
There were further arguments by both parties concerning
the intention of the legislature as to the interests of landlords
and tenants. In this connection, the learned trial judge said that
the appellant was asking the court to grant her the valuable
status of irremovability by reason of her inadequate income.
The learned trial judge commented adversely on this claim and
it appears that he did not appreciate the true purpose of the
Rent Acts - that is to protect tenants. As Lord Green, M.R.
said in the case of Curl v. Angela. The ‘real fundamental
object’ of the Acts is ‘protecting the tenant from being turned
out of his home.’ We agree with that dictum and we would
emphasise that, even when a landlord provides proof that his
case comes within the provisions of section 13 (1)(e), it is still
incumbent upon him to prove that the premises are reasonably
so required. For the reasons we have given we allowed this
appeal.
Section 13 of the Rent Act provides for the grounds upon
which the landlord may be entitled to recover possession of the
premises. Section 13 (1)(d) provides, as a ground for possession,
the subletting the whole or any part of the premises for a rent in
18
[1949] SC 195.
excess of the rent recoverable under the Act. Further, section
13 (1)(g) provides as a ground for possession, the subletting
without the consent of the landlord. In Nip v. Zambia State
Insurance Corporation,19 in an appeal against a High Court
Judgment refusing the grant of a declaration that the appellant
was entitled to the tenancy of a lease from the respondent, the
Supreme Court found that the appellant did not sublet the demised
premises, but merely created a licence and hence the
arrangement did not fall under section 13 (1)(d) of the Rent
Act. The Supreme Court further observed that although the
appellant could have sublet under the provisions of section 26
which provides for subletting (with consent of the landlord or by
order of court) for a period of less than six months, there was
nothing to prevent him from choosing a licence instead.
(c) Rent Amendment Act (No. 12) of 1974, Section 32A -

Rent in Arrears - Distress Landlord and Tenant – Rent
payable in advance becomes in arrears the minute it is
not paid on the due date
Hampako v. National Housing Authority (1988/89) ZR 61
[The facts of the case appear from the Supreme Court Judgment of
NGULUBE, DCJ, as he then was]
For convenience we will refer to the appellant as the plaintiff

and the respondent as the defendant which is what they were in
the action.
This is an appeal by the plaintiff against the dismissal of his
action in which he claimed damages for breach of a tenancy
agreement made between the two parties regarding a house in
the Kabwata Estates. By his statement of claim, the plaintiff
alleged that the defendant had carried out an illegal eviction and
in the process the defendant had failed to look after the plaintiff’s
property which was removed from the house and which was
later found to be either missing or damaged.
The defendant had carried out the eviction by virtue of the
statutory powers contained in section 32A of the Rent
(Amendment) Act (No. 12) of 1974, which amended the Rent
Act, Cap. 438 which reads:
19
(1994) ZR 144. This case is excerpted in chapter 5 of this book dealing with leases and licences.
32A (1) Notwithstanding anything to the contrary

contained in this Act or any other law, a local
authority or the National Housing Authority, as the
case may be, shall have power:
(a) to evict a tenant from the premises let to

him by the Local Authority or the National
Housing Authority, as the case may be,
without having to institute proceedings in
Court in that behalf, if the tenant is in arrears
of rent for a period of not less than three
months.
One issue which arose at the trial and which arises here is
whether or not the plaintiff was in arrears for the requisite period
of three months. There was evidence that, in terms of the tenancy
agreement, the rent had to be paid a month in advance and it
was found as a fact by the learned trial Judge that the plaintiff-
as at 1 February 1978 when the eviction notice was issued- was
in arrears of three months’ rent, namely, rent for the months of
December 1977, January and February 1978.
On behalf of the appellant, Mr Imasiku has argued that, on a
correct reading of the section which we have quoted, a tenant
could not be in arrears of rent in respect of a period in the future
even where the rent is payable in advance. He submits that the
correct meaning to be attached to this section is that the tenant
must actually have occupied the premises for a period of at
least ninety days without payment of any rent in respect thereof.
His opponent, Mr Maketo, has argued that where rent is payable
in advance it is in arrears as soon as the time for payment has
passed. We have considered these arguments and we have no
doubt in our minds that Mr Maketo’s understanding of the
meaning of this section is the correct one. We have examined
the language of the section relied upon and we agree that where
any rent is payable in advance it becomes in arrears the minute
it has not been paid on the due date. It is not correct to suggest
that the meaning of the law as contained in the section quoted
is that which is asserted by Mr Imasiku. We do not uphold the
argument by Mr Imasiku.
In the alternative, it was argued that, because the plaintiff
had paid an initial deposit of K40 which was expressed to be the
equivalent of one month’s rent, then as a matter of fact the
plaintiff did not owe three but only two months’ arrears. Once
again we have no difficulty in rejecting that argument. We have
examined the tenancy agreement and we have observed that
the deposit was not payable as pre-payment of rent for a month
and that the payment of such deposit did not in any way relieve
the tenant of his obligation under the agreement to pay rent in
advance, monthly. It follows from what we have said that none
of the submissions under the first ground argued can be accepted.
The second point raised in this appeal concerns a lounge
suite and two lamp stands which were taken by way of distress
for the payment of the rent arrears then outstanding. It has
been argued by Mr Imasiku that to take all that property in
order to cover a debt which was only K80 (after the deposit of
K40 was taken into account) amounted to an excessive execution
or, in the alternative, excessive distress. We wish to observe, as
it has been pointed out by Mr Maketo, that there was in fact no
claim concerning this and that the only claim regarding any
property related to the damaged or missing items which claim
was, of course, not accepted by the learned trial Judge. The
Court below found that there was no wrongful eviction in this
case and that the defendant had exercised its right to distrain
for the unpaid rent. In this connection, the learned trial Judge
declined to make an order against the plaintiff for the payment
of K80 due, so long as the defendant was in possession of the
plaintiff’s property which had been taken in exercise of the right
of distress, which is a sort of self-redress. We cannot now
speculate or assume that the parties have exhausted their rights
under the distress and we certainly cannot see any good reason
why the parties did not attempt, after the judgment below, to
take the matter to its logical conclusion. We mention only in
passing (since it is not necessary at this stage to make a positive
finding) that the plaintiff undoubtedly has the right to replevy the
goods detrained by the defendant, and should it be discovered
on such effort being made that there was anything the matter
with the way the distress has been handled by the defendant,
that would be the subject matter of a cause of action which
does not presently arise. In view of what we have said, the
second ground argued before us can also not be entertained.
The result is that the whole of the appeal fails; the costs follow
the event.
15.5 Summary of Chapter Fifteen

the protection of tenants of residential premises in Zambia. The
Rent Act seeks to define the rights and obligations of landlords
and tenants of residential premises in Zambia. The purpose of
the Rent Act in general, is for the protection of tenants of dwelling
houses. This protection is largely achieved under the Rent Act
by limitation of rent payable and provision of a substantial measure
of security of tenure. The limitation of rent payable is achieved
under the Act through:
(a) The application of the concept of standard rent.
(b) The provisions of section 10 (demanding or accepting
rent in excess of standard rent or advance of rent
exceeding two months standard rent is criminalised).
(c) Section 11 instances when the landlord may increase
rent are circumscribed under the section.
Security of tenure is achieved under the Act, inter alia, through
the wide powers vested into the court under sections 4 and 5 of
the Act, restrictions on right to take possession under section 13
by circumscribing the instances under which the tenant can be
deprived of possession or forcibly removed by order of court.
The taking of possession or ejectment of a tenant can only be
done through the court which has to be satisfied with the
ground(s) advanced for the intended possession or ejectment.
Section 14 of the Act further restricts the levy of distress of any
premises except with leave of court. The restriction on payment
of premium under section 15 of the Act provides further security
of tenure to the tenant. The true purpose of the rent which is for
the protection of tenants has been illustrated and/or exemplified
by the case of Drake v. M.B.L Mathani and Another.
The Rent Act is to a large extent out of touch with the realities
on the ground today. This is mainly with respect to the provisions
for determining standard rent as well as the enormous task of
supervision placed on the court in the absence of rent controllers.
It is safe to say that rent control has had unsuccessful history in
Zambia.
547
Chapter Sixteen
PROTECTION OF TENANTS OF BUSINESS

PREMISES IN ZAMBIA: The Landlord and
Tenant (Business Premises) Act
16.0 Introduction
The brief background to legislation relating to protection of tenants

in Zambia is discussed under section 15.1 of Chapter Fifteen.
The Rent Control (Temporary Provisions) Act made provision
for the restriction of eviction from both dwelling and commercial
premises. The Act also provided for control of the rents and
restriction on payment of premiums.
The Landlord and Tenant (Business Premises) Act1 was
enacted in 1971 to supersede the Rent Control (Temporary
Provision) Act whose life was going to expire on 31 December
1971.2 On the Justification of enacting the Landlord and Tenant
(Business Premises) Act, the then Minister of State for Provincial,
Local Government and Culture, Mr Josy Monga, had this to say
when presenting the Bill to the National Assembly:
We are now, Sir, approaching the end of 1971, but

it is certain that there is a season and a time for
everything and although the temporary 1968 Act
has continued in force until now, I believe that every
Member of the House will agree that there cannot
have been a more propitious time than the present
for the enactment of the Business Premises Bill. I
have two reasons for this belief, Sir, First, we have
now had the benefit of seven years of our
independence and now know from experience the
manner in which building development and the use
of both business and residential properties have
progressed throughout the country; secondly, and
far more important, at this juncture we are on the
threshold of the exciting future which our Second
National Development Plan will seek to create. I
suggest to the House, Sir, and I do so with
1
2
See the Daily Parliamentary Debates (No. 28C), Thursday, 25 November 1971, at p. 134.
assurance that enactment of this Landlord and

Tenant Bill, and later, the Residential Rent Bill, will
lay firm foundations for lasting mutually satisfactory
relationships between landlords and tenants of
every type of rented properties, business and
residential properties alike, and it will provide
realistic encouragement both to Zambian and
foreign developers and investors that they may
continue to erect, and to support the erection of
premises for rental throughout Zambia, profitably
to themselves and to their tenants. Mr speaker,
Sir, it is may be a matter for some regret, but
unfortunately, I am advised it is usually unavoidable
that landlord and tenant legislation, if it is to succeed
in satisfying both landlords and tenants, always
appears to the layman as ‘technical jargon’ which
only lawyers can attempt to unravel, and which is
designed to continue to provide the lawyers with a
good living.3
The Landlord and Tenant (Business Premises) Act became

effective on 1 January 1972.4 The Act is largely based on the
English Landlord and Tenant Act of 1954. 5 The primary
objectives of the Act are to provide security of tenure for tenants
occupying property for business, professional and certain other
purposes and to enable such tenants to obtain new tenancies in
certain cases.6
16.1 Scope of Application
Section 3 of the Act provides the extent or scope of application

of the Act. The section enacts:
(1) Subject to the provisions of subsection (2), this

Act shall apply to all tenancies in Zambia.
(2) This Act shall not apply to-
(a) agricultural holdings;
3
Ibid.
4
See Preamble of the Act.
5
See the Observations of Doyle, CJ in Musingah v. Daka (1974) ZR 37. See also observations of Ngulube, DCJ
(as he then was) in Afro Butcheries v. Evees Limited (1987) ZR 39 and Zimco Properties v. Dinalar Randee
Enteprises (1988/89) ZR 119. These cases are excerpted under the section dealing with case law.
6
See the Preamble to the Act.
PROTECTION OF TENANTS OF BUSINESS PREMISES IN ZAMBIA:
THE LANDLORD AND TENANT (BUSINESS PREMISES) ACT 549
(b) premises let or used exclusively for
residential purposes;
(c) premises let by Government or a local
authority;
(d) premises held by a tenant under a tenancy
for a term of years certain exceeding
twenty-one years;
(e) premises or part of the premises
comprised in a tenancy, in which a tenant
is carrying on a business in breach of a
prohibition (however expressed) of use
for business purposes which subsists
under the terms of the tenancy and
extends to the whole of those premises,
unless the immediate landlord or his
predecessor in title has consented to the
breach or the immediate landlord has
acquiesced therein.
In this paragraph the reference to a
prohibition of use for business purposes
does not include a prohibition of use for
the purposes of a specified business, or
of use for purposes of any but a specified
business;
(f) premises comprised in a tenancy granted
by reason that the tenant was the holder
of an office, appointment or employment
from the grantor of the tenancy and
continuing only so long as the tenant holds
such office, appointment or employment,
or terminable by the grantor on the
tenant’s ceasing to hold it, or coming to
an end at a time fixed by reference to the
time at which the tenant ceases to hold
it;
(g) premises comprised in a tenancy granted
for a term certain not exceeding three
months, unless-
(i) the tenancy contains provisions for
renewing the term or for extending
it beyond three months from its
beginning; or
(ii) the tenant has been in occupation for

a period which, together with any
period during which any predecessor
in the carrying on of the business
carried on by the tenant was in
occupation, exceeds six months.
16.2 Definition of ‘Lease’, ‘Tenancy’, and ‘Business’
The term ‘lease’ is defined under section 2 of the Act to mean:
A lease, under-lease or other tenancy, assignment

operating as a lease or under-lease, or an
agreement for such lease, under-lease, tenancy or
assignment.
The term ‘tenancy’ is defined under section 2 of the Act to

mean:
A tenancy of business premises (whether written

or verbal) for a term of years certain not exceeding
twenty-one years, created by a lease or under-
lease, by an agreement for or assignment of a lease
or under-lease, by a tenancy agreement or by
operation of law, and includes a sub-tenancy but
does not include any relationship between a
mortgagor and mortgagee as such, and references
to the granting of a tenancy and to demised property
shall be construed accordingly.
The term ‘Business’ is defined under section 2 of the Act to

mean:
A trade, an industry, a profession or an employment,

and includes any activity carried on by a body of
persons, whether corporate or unincorporate, but
does not include farming on land.
16.3 Security of Tenure under the Act
Security of tenure is secured under section 4 of the Act. The

(1) A tenancy to which this Act applies shall not come to
an end unless terminated in accordance with the
provisions of this Act; and, subject to the provisions of
section ten, the tenant under such a tenancy may apply
to the court for a new tenancy
(a) if the landlord has given notice under section five
to terminate the tenancy; or
(b) if the tenant has made a request for a new
tenancy in accordance with section six.
16.4 Tenancy may come to an End by Notice to Quit Given

by Tenant, Surrender and Forfeiture
In terms of section 4 (2) of the Act, the provisions of section 4

(1) (excerpted above) shall not prevent the coming to an end of
a tenancy by a notice to quit given by the tenant, by surrender or
by the forfeiture of a superior tenancy. Another situation where
the current tenancy will come to an end without the tenant having
the right to apply for the grant of a new tenancy is where the
parties renew the tenancy by agreement. This is provided for
under section 9 of the Act. The section provides that:
Where the landlord and tenant agree upon the grant

to the tenant of a future tenancy of the holding, or
of the holding with other land or premises on terms
and from a date specified in the agreement, the
current tenancy shall continue until that date but
no longer, and shall not be a tenancy to which the
provisions of this Act apply.
Apart from the above situations, the special machinery of the

Act or rather the procedures outlined under the Act must be
used or complied with in order to determine a tenancy protected
under the Act.
16.5 Termination of Tenancy by Landlord
Section 5 (1) of the Act provides for the termination of the tenancy
by the landlord. The section provides that:
The landlord may terminate a tenancy to which this Act

applies by a notice given to the tenant in the prescribed
form specifying the date on which the tenancy is to come

to an end (hereinafter referred to as ‘the date of
termination’)
Provided that this subsection shall have effect subject
to the provisions of section twenty-three as to the interim
continuation of tenancies pending the disposal of
applications to the court.
In order to have effect, the notice to quit should be given not

less than six months and not more than twelve months before
the date of termination specified therein.7
Subsections (5) and (6) of section 5 provide that:

(5) A notice under this section shall not have effect
unless it requires the tenant, within two months after
the giving of the notice, to notify the landlord in
writing whether or not, at the date of termination,
the tenant will be willing to give up possession of
the property comprised in the tenancy.
(6) A notice under this section shall not have effect
unless it states whether the landlord would oppose
an application to the court under this Act for the
grant of a new tenancy and, if so, also states on
which of the grounds mentioned in section eleven
he would do so.
As for the reasons for the requirement in subsection 6 of section

5 that the landlord must state in his notice on which of the grounds
mentioned in section 11 he intends to rely, Romer, LJ when
dealing with the 1954 English Landlord and Tenants Act (on
which the Zambian Act is largely based on), observed that:
The matter will ultimately come before the Court

and it is obviously right that the tenant should know
in advance what is the case that he will have to
meet at the hearing…. It is, I think, intended to be
in the nature of a pleading and its function, as in all
cases of pleadings, is to prevent the other party to
the issue from being taken by surprise when the
matter comes before the Judge.8
7
Section 5 (2).
8
Betty’s Cafes Ltd v. Philips Furnishing Stores Ltd (1959) AC 20 at pp. 43 - 44. The case is excerpted under the
segment dealing with case law.
16.6 Tenant’s Request for a New Tenancy
Section 6 of the Act deals with the tenant’s request for a new
tenancy. A tenant’s request for a new tenancy may be made
where the tenancy under which he holds for the time being
(current tenancy) is a tenancy granted for a term of years certain
and thereafter from year to year. A tenant’s request for a new
tenancy shall be for a tenancy beginning with such date, not
more than twelve nor less than six months after the making of
the request.9 A tenant’s request for a new tenancy shall not
have effect unless it is made by notice in the prescribed form
given to the landlord and setting out the tenants proposals as to
the property to be comprised in the new tenancy, as to rent to be
payable under the new tenancy and as to the other terms of the
new tenancy.10 A tenant’s request for a new tenancy shall not
be made if the landlord has already given notice under section 5
to terminate the current tenancy or if the tenant has already
given notice to quit.11 Within two months of the making of a
tenant’s request for a new tenancy, the landlord may give notice
to the tenant that he will oppose an application to the court for
the grant of a new tenancy, and any such notice shall state the
ground or grounds mentioned in section eleven on which the
landlord will oppose the application.12
16.7 Grounds of Opposition to the grant of a new Tenancy

available to the Landlord
The grounds on which a landlord may oppose an application for

a new tenancy are set out in section 11 of the Act. A landlord
can only rely on the ground(s) stated in his notice to quit under
section 5 of the Act. A successor in title may rely on the ground(s)
stated by his predecessor.13 The court will grant a new tenancy
unless the Landlord establishes one or more of the statutory
grounds of opposition. Section 11 (1) of the Act provides that:
(1) The grounds on which a landlord may oppose

an application under subsection (1) of section
four are such of the following grounds as may
be stated in the landlord’s notice under section
five or, as the case may be, under subsection
(6) of section six, that is to say:
9
10
11
12
(a) where under the current tenancy the tenant

has any obligations as respects the repairs and
maintenance of the holding, that the tenant
ought not to be granted a new tenancy in view
of the state of repair of the holding, being a
state resulting from the tenant’s failure to
comply with the said obligations;
(b) that the tenant ought not to be granted a new
tenancy in view of his persistent delay in paying
rent which has become due;
(c) that the tenant ought not to be granted a new
tenancy in view of other substantial breaches
by him of his obligations under the current
tenancy, or for any other reason connected
with the tenant’s use or management of the
holding;
(d) that the landlord has offered and is willing to
provide or secure the provision of alternative
accommodation for the tenant, that the terms
on which the alternative accommodation is
available are reasonable, having regard to the
terms of the current tenancy and to all other
relevant circumstances, and that the
accommodation and the time at which it will
be available are suitable for the tenant’s
requirements (including the requirement to
preserve goodwill) having regard to the nature
and class of his business and to the situation
and extent of, and facilities afforded by, the
holding;
(e) where the current tenancy was created by the
subletting of part only of the property comprised
in a superior tenancy and the landlord is the
owner on the termination of the superior
tenancy, that the aggregate of the rents
reasonably obtainable on separate lettings of
the holding and the remainder of that property
would be substantially less than the rent
reasonably obtainable on a letting of that
property as a whole, that on the termination of
the current tenancy the landlord requires
possession of the holding for the purpose of
letting or otherwise disposing of the said
property as a whole, and that in view thereof
the tenant ought not to be granted a new
tenancy;
(f) that on the termination of the current tenancy
the landlord intends to demolish or reconstruct
the premises comprised in the holding or a
substantial part of those premises or to carry
out substantial work of construction on the
holding or part thereof and that he could not
reasonably do so without obtaining possession
of the holding;
(g) save as otherwise provided in subsection (2),
that on termination of the current tenancy the
landlord intends to occupy the holding for the
purposes, or partly for the purposes, of a
business carried on by him therein, or as his
residence.
If the landlord succeeds in his opposition to the application for a
new tenancy, the court should dismiss the application.14
16.8 Compensation Where Order for New Tenancy Precluded

on Certain Grounds
Section 19 of the Act provides for compensation to the tenant in

certain cases where the court is precluded to grant a new tenancy
(following an application under section 4) on the grounds spelt
out under paragraphs (e) (f) and (g) of section 11 (1) of the Act.
The grounds of opposition under the said paragraphs (e), (f) and
(g) of section 11 (1) of the Act excerpted above (i.e., more
valuable as a whole, demolition or reconstruction and own
occupation respectively) are similar in that they are all for the
landlord’s benefit .
16.9 Restrictions on Agreements Excluding Provisions of the

Acts
Section 20 of the Act provides for restrictions on agreements

excluding the provisions of Act. The section provides that:
Any agreement relating to a tenancy to which this

Act applies (whether contained in the instrument
creating the tenancy or not) shall be void in so far
as it purports to preclude the tenant from making
an application or request under this Act, or provides
for the termination or surrender of the tenancy in
13
Appollo Refrigiration Services Co. Ltd v. Farmers House Ltd (1985) ZR 182.
the event of his making such an application or

request, or for the imposition of any penalty or
liability on the tenant in that event.
16.10 Determination of Rent by Court in Certain Instances
Section 28 of the Act provides one important protection afforded

to the tenant. The section allows an aggrieved tenant to apply to
court for determination of rent. The section provides that:
(1) Notwithstanding anything to the contrary

contained in this Act or any other written law or
in any lease, a tenant whose tenancy
commences on or after the 1st January, 1972,
and to which tenancy this Act applies, may, within
three months from the commencement thereof
(if he is aggrieved by the rent payable
thereunder), apply to the court for determination
of rent; and, subject to the provisions of
subsection (2), the court shall determine the rent
which shall be substituted for the rent agreed to
be paid under the tenancy.
(2) The rent determined by the court under
subsection (1) shall be that at which, having
regard to the terms of the tenancy (other than
those relating to rent), the holding might
reasonably be expected to be let in the open
market by a willing lessor to a willing lessee,
there being disregarded-
(a) any effect on rent of the fact that the
landlord’s or the tenant’s predecessors
have been in occupation of the holding;
(b) any goodwill attached to the holding by
reason of the carrying on of business by
the landlord’s or tenant’s predecessor;
(c) any effect on rent of any improvement
carried out by the tenant otherwise than in
pursuance of an obligation to the tenant’s
immediate landlord.
(3) The court shall fix the date (which date shall
not in any case be earlier than the date of
commencement of the tenancy) from which the
rent so determined under subsection (1) shall
be payable by the tenant, and any sum paid in
excess of the rent so determined shall be
recoverable from the landlord who received the
payment, or from his legal personal
representative, by the tenant who paid such sum;
and any such sum, and any other sum which,
under the provisions of this Act is recoverable
by a tenant from a landlord or payable or
repayable by a landlord to a tenant, may, without
prejudice to any other method of recovery, be
deducted by the tenant from any rent payable
by him to the landlord.
(4) After determination of the rent under subsection
(1), if any person or landlord makes a demand
or accepts rent in excess of the rent so
determined, he shall be guilty of an offence and
liable on conviction to a fine not exceeding five
thousand penalty units to imprisonment for a term
not exceeding six months, or to both.
(5) Any sum paid by a tenant which under
subsection (3) is recoverable by him shall be
recoverable at any time within six years from
the date the court makes the determination under
subsection (1).
(As amended by Act No. 13 of 1994)
It may be noted here that unlike under the Rent Act which
requires that standard rent should be determined by the court,
(the duty to apply is placed on the landlord) before letting or
within three months of letting, the Landlord and Tenant (Business
Premises) Act only allows an aggrieved tenant to apply for
determination of rentals within three months of the letting.
16.11 Distress for Rent
Unlike the Rent Act, the Landlord and Tenant (Business

Premises) Act is silent on the issue or aspect of distress for
rent. In Paperex Limited v. Deluk High School,15 Ngulube,
CJ, as he then was, observed and commented thus:
On behalf of the appellant the Landlord, Mr

Mwanawasa submitted that the Rent Act does not
apply to business premises, only to dwelling houses.
The Rent Act says so (see s. 3) and Dr Soko who
14
Ibid., section 12(1).
15
appeared for the respondent quite properly informed

us that he did not agree with the learned trial Judge on
this point. Dr Soko also very properly conceded that
the learned trial Judge was wrong to hold that because
the Rent Act allegedly applied to these business
premises (Which it did not in fact) the Law of Distress
Amendment Act 1888 of the UK did not apply under
which a landlord can distrain for rent. It is the Rent
Act in s. 14 which imposes a restriction on the levying
of distress for rent of dwelling houses which can only
be done with leave of the court. On the other hand,
there is no similar restriction under the Landlord and
Tenant (Business Premises) Act. There was thus
nothing illegal or unlawful in the appellant’s issuing of
warrants of distress to distrain for arrears of rent under
the British Statute which applies by virtue of our own
English Law (Extent of Application) Act.
The term ‘distress’ mainly connotes a summary remedy by

which a person is entitled without legal process to take into his
possession the personal chattels of another person to be held as
a pledge to compel the performance of a duty, the satisfaction
of a debt or demand or the payment of damages for trespass
by cattle.16 The common law right of distress for rent in arrears
is a right for the Landlord to seize whatever movables he finds
on the demised premises of which rent or service issues and to
hold them until the rent is paid or the service performed.17 The
right of a landlord to distrain for arrears of rent arises at common
law and need not be expressly reserved.
In order that the right to distrain for rent upon a demise may
arise the relationship of Landlord and Tenant must exist, both
when the rent becomes due and when the distress is levied, and
the rent must be in arrears.18 Distress cannot be levied until
the rent is in arrears i.e., there can be no distress until the day
after the rent becomes due. If days of grace are given, distress
cannot be levied until they have expired.19 Rent payable in
advance may be distrained for on the day following that fixed
for payment.20 Under common law a landlord can prima facie
seize and distrain for rent in arrears all goods and chattels found
on the premises out of which the rent issues.21
16
See Halsbury Laws of England (3rd ed.). London: Butterworth and Co. Publishers Ltd, at p. 87, para 124.
17
Lyons v. Elliott [1876] 1 QBD.210 at page 213, per Blackburn, J.
18
Supra note 16, at p. 90 para 130.
19
See Child v. Edwards [1909] 2 KB 753.
20
See the case of Hampako v. National Housing Authority (1988/89) ZR 61; excerpted under chapter 15 of this
book.
21
Supra note 16, at p. 100 para 152.
In England, a host of statutes have been enacted over a period
of time on the subject of distress for rent. These statutes include
the Distress for Rent Act, 1689, Distress for Rent Act 1737,
Law of Distress Amendment Act of 1888, Law of Distress
Amendment Act of 1895 and the Law of Distress Amendment
Act, 1908.22 These statutes apply to Zambia by virtue of the
English Law (Extent of application) Act.23
In terms of section 1 of the Distress For Rent Act, 1689 the
goods distrained may be sold after five days if the distrainee
does not exercise the right of replevy. The five days are to be
reckoned exclusive of the day of the levy.24 In terms of section
6 of the Law of Distress Amendment Act, 1888, the distrainee
can, upon request, have this five days period extended for a
further period of not more than fifteen days.
No person may be employed as a bailiff to levy any distress
for rent unless he is authorised to act as a bailiff by a certificate
in writing under the hand of a judge. Section 7 of the Distress
Amendment Act, 1888, requires that a distress shall be levied
by a certificated bailiff otherwise it would be a trespass. An
uncertificated landlord has the right to distrain in person.25
In Re Kamaya,26 the High Court of Zambia held that an
applicant for a certificate as certificated bailiff must show, as a
fit and proper person, that he is fully conversant with the law of
distress and the procedure to be adopted in levying a distress.
16.12 Case Law
(a) The phrase ‘term of years certain not exceeding 21 years’

under the definition of Tenancy, under section 2 of the
Landlord and Tenant (Business Premises) Act means, ‘a
term certain not exceeding 21 years.’
Musingah v. Daka (1974) ZR 37
[The Facts of the case appear from the Judgment of DOYLE, CJ]
This is an action for the possession of premises known as Plot

1671, Chifinga Road, Lusaka. The plaintiff also claims an
injunction, damages for trespass and mesne profits.
22
See the statutes in supra note 16, volume 9.
23
24
Robinson v. Waddington (1849) 13 Q 733.
25
Supra note 16, at p. 129, para 223.
26
(1987) ZR 7
The plaintiff was a sub-tenant of Plot No. 1671 from Atlas

Copco (Zambia) Limited for the period 1 May 1972, to 31 March
1973. Atlas Copco (Zambia) Limited were tenants from a Mr
Ladd and the period of eleven months was the balance of a
lease from Mr Ladd. The rent was K300 per month.
The plaintiff had been carrying on a sign-writing business in
Freedom Way and the defendant had at one time been interested
in buying it. When plaintiff moved his business to Chifinga Road
he wrote to defendant asking him if he was interested in sharing
the premises. Plaintiff and defendant agreed that defendant
should move into part of the premises, paying a rent of K150
per month and should carry on a business of panel-beating, spray-
painting, mechanical work and the making of number plates.
Plaintiff and defendant amicably carried on their separate
businesses on the premises for some time. Then about September
1972, discord crept in. The plaintiff claimed that defendant was
using his business name and the defendant had a complaint that
the plaintiff had started up a panel-beating business elsewhere
and was trying to entice away defendant’s workmen.
There had been some talk of buying the head-lease of the
premises from Mr Ladd, but this fell through as plaintiff was
unable to raise the purchase price. Subsequently the defendant
and Mr Ladd agreed that the defendant should buy the head-
lease.
Some time prior to 8 March 1973, plaintiff wrote to Mr Ladd
asking him for a new tenancy. Plaintiff alleges that the letter,
put in as Exhibit 5 and dated 26 January 1973, was this letter. I
have some doubts that this is so, as the letter is written in terms
far differing from the somewhat illiterate missives that had
previously passed between plaintiff and defendant. However,
that he wrote at some time claiming a tenancy is certain because
defendant’s solicitors wrote back on 8 March 1973, telling the
plaintiff that his tenancy would not be renewed. Plaintiff then
looked for other premises, though he maintained in evidence
that he still wanted to remain in the premises at Chifinga Road
but was merely taking precautions in case he was evicted.
The sub-lease from Atlas Copco (Zambia) Limited expired
on 31 March 1973. According to the plaintiff he remained in
occupation until Monday, 2 April, the first being a Sunday, and
would have continued to remain there but for what happened
thereafter. On Monday, 2 April, his secretary, Miss Shungu, went
as usual to work at Chifingu Road. According to her she found
the office locked. She went to the back and went through
defendant’s premises into plaintiff’s office. There she found
defendant and his two secretaries. There was additional furniture
in the office. The defendant asked for the key and Miss Shungu
said she did not know where it was. Defendant then became
threatening and told Miss Shungu to leave the premises. She did
so and went to plaintiff’s panel beating business where she told
plaintiff what had happened. In consequence plaintiff sent some
of his workmen to remove his things, he did not remove them all.
According to plaintiff he did not intend to vacate the premises,
but was merely acting as he did to protect his property and
avoid a breach of the peace. He had been taking legal advice
before this and on 10 April 1973, he issued this writ. He paid no
rent after 31 March.
By and large there is little material difference between the
plaintiff’s history of the events leading up to 2 April 1973, and
that of defendant. Defendant threw the blame for their mutual
discord upon the plaintiff. According to him what happened prior
to 2 April was that after discussions about the tenancy plaintiff
accepted that he could not get a new tenancy and started moving
his things voluntarily before 31 March 1973. On 2 April 1973, he
collected some of his things and left some.
The defendant had never seen Miss Shungu on 2 April and
did not move any of defendant’s furniture into plaintiff’s part of
the premises. He had merely assumed that the plaintiff was
moving out of his own accord as his tenancy had expired.
Defendant then remained in the premises, paying a rent of K300
per month to Mr Ladd pending, completion of his purchase of
the lease from Mr Ladd.
The material question in this case is whether plaintiff left the
premises and acquiesced, whether reluctantly or not, in the
termination of his lease.
Having seen and heard the witnesses I prefer the evidence
on behalf of the plaintiff in relation to this matter. Miss Shungu
impressed me as a good witness. Defendant on the other hand
was evasive at first. He was maintaining that he would have
been happy if plaintiff had continued staying on with him after 2
April, but eventually he agreed that he would not have permitted
plaintiff to do so. Although plaintiff’s action in looking for other
premises and his failure to take more direct action to maintain
his right tells against him, it is not unreasonable that he should as
a precaution seek other premises, and it is equally not
unreasonable that he should seek to avoid physical trouble. It is

significant that, as I accept, he was already seeking legal advice
and issued his writ within eight days of the event.
I am satisfied that the plaintiff was maintaining his right to
the premises and only physically removed himself to avoid
trouble. I am satisfied therefore that the occupation of the
premises by the plaintiff did not terminate by mutual consent
with the defendant.
Counsel for the plaintiff based his case on the proposition
that the plaintiff remained a tenant by holding over after a tenancy
for a term certain, and this tenancy continued, and would have
continued until proceedings were brought to eject him. If not
told to quit by the landlord, he became a tenant at sufferance.
His occupation could not be terminated by a forcible entry.
Furthermore, even if he were not a tenant at common law, he
continued a tenancy by virtue of the Landlord and Tenant
(Business Premises) Act, 1971.
I am satisfied that the plaintiff held a tenancy for a period of
eleven months certain. That tenancy expired at common law.
He did not continue in possession with the consent of his landlord,
and therefore did not become a tenant at will. At best at common
law he became a tenant at sufferance. It is very doubtful if he
ever became such a tenant and he was before 2 April aware
that Mr Ladd had agreed to sell the lease to defendant, and was
also aware that defendant was unwilling that he should stay on.
A tenancy at will is of somewhat higher status than a tenancy at
sufferance. A tenancy at will is determined if the landlord puts
in a new tenant. Even if plaintiff ever became a tenant at
sufferance, that tenancy was clearly determined when Mr Ladd
had agreed to sell the lease to defendant and to continue to
have the defendant as his tenant until completion. That was in
the knowledge of the plaintiff. I am also satisfied that there was
no forcible entry as access without force was obtained though
defendant’s premises. I am satisfied that at common law the
plaintiff has no claim to the premises.
The plaintiff’s case stands or falls upon the question of
whether his tenancy comes within the provisions of the Landlord
and Tenant (Business Premises) Act, 1971, which I will refer to
hereafter as the Act. Under section 4 of the Act it is provided
that tenancies to which the Act applies shall not come to an end
unless terminated in accordance with the provisions of the Act,
save that a tenancy may come to an end by notice to quit given
by the tenant, by surrender or by forfeiture, or by the forfeiture
of a superior tenancy. Under section 5 the landlord may terminate
a tenancy by notice given in the prescribed form.
In the instant case the tenant has not given notice to quit,
there has been no surrender or forfeiture and the landlord has
not given notice in the prescribed form. If the Act applies to the
plaintiff’s tenancy that tenancy has been continued in force by
the Act.
Under section 3 of the Act, it applies subject to subsection
(2) to all tenancies in Zambia. ‘Tenancy’ is defined in section 2:
‘tenancy’ means a tenancy of business premises

(whether written or verbal) for a term of years
certain not exceeding twenty one years, created
by a lease or under-lease, by an agreement for or
assignment of a lease or under-lease, by a tenancy
agreement or by operation of law, and includes a
sub-tenancy but does not include any relationship
between a mortgagor and mortgagee as such and
references to the granting of a tenancy and to
demised property shall be construed accordingly.
The ordinary meaning of a tenancy ‘for years’ is a tenancy of

which the term must be at least two years, and the
commencement and duration of the term must be capable of
ascertainment with certainty. (See the cases referred to in
paragraph 18 of Hill and Redman’s Law of Landlord and
Tenant 13th Edition.)
Clearly, if the expression ‘a term of years certain’ is given its
ordinary meaning, the plaintiff’s tenancy, which was for a term
of eleven months, would be excluded. The question for decision
is whether in the context of the Act a more extended definition
can be given to the expression.
In Re Land and Premises at Liss, Hants,27 a case which
my research had unearthed but which was also referred to me
after the hearing by counsel for the plaintiff, with the approval
of the defendant’s advocates, Goulding, J, had a somewhat similar
question to answer. This was a case on the English Landlord
and Tenant Act, 1954. Under that Act, as amended by the Law
of Property Act, 1969, it was possible for the court in relation to
a tenancy for a term of years certain to authorise in certain
27
[1971] 3 All. ER 380.
circumstances an agreement to opt out of sections 24-28 of the

English Act. The applicants sought an order authorising this
exclusion in relation to a six months’ business tenancy agreement.
It is apparent that the Zambian Act has largely been based
upon the English Act.
Goulding, J, pointed out first the common law position and
then drew attention to the fact that the Interpretation Act 1889
includes the singular in the plural and therefore enabled the
reading of ‘a term of years certain’ as ‘a term of one year
certain’. Similar reasoning would apply in Zambia in regard to
the Interpretation Act. That however, did not dispose of the
matter, as it does not dispose of it in this case, as the term in
issue was six months.
Goulding, J, was able to find sufficient context in several
sections of the English Act to enable him to give an extended
meaning to the term to include a term certain for less than one
year. The first was section 24 (3). This reads as follows:
24. (3) Notwithstanding anything in subsection (1)

of this section,
(a) Where a tenancy to which this Part of this
Act applies ceases to be such a tenancy, it
shall not come to an end by reason only of
this cesser, but if it was granted for a term
of years certain and has been continued
by subsection (1) of this section then
(without prejudice to the termination thereof
in accordance with any terms of the
tenancy) it may be terminated by not less
than three nor more than six months’ notice
in writing given by the landlord to the tenant
...
This is in identical terms to section 4 (3) of the Act. As the

English Act in terms referred, subject to certain specified
exceptions, to all business premises of whatever length of tenure,
counsel was able to point out that giving the words ‘term of
years certain’ their ordinary meaning would result in a casus
omissus in that a business tenancy granted for less than a year
and continued by reason of section 24 (1), and then ceasing to
be a protected tenancy would not be terminable by any notice
provided for by the Act. That argument does not apply to section
4 (3) of the Zambian Act, because giving the words their ordinary
meaning the Zambian Act would not apply to a business tenancy
granted for less than a year.
The next English section was section 26 (1) which reads as
follows:
26. (1) A tenant’s request for a new tenancy may

be made where the tenancy under which he holds
for the time being (hereinafter referred to as ‘the
current tenancy’) is a tenancy granted for a term
of years certain exceeding one year, whether or
not continued by section twenty-four of this Act,
or granted for a term of years certain and thereafter
from year to year.
Goulding, J, pointed out that this could be read as merely excluding

a term which is exactly one year and not a day more, but that it
was more natural to assume that the draftsman had, as he
appeared to have in section 24, the idea that a term of years
certain might be of any duration, even less than one year. In so
saying it seems to me that Goulding, J, was clearly referring to
the words in the section ‘a term of years certain exceeding one
year’.
The equivalent section in the Act is section 6 (1). That section
omits the reference to a tenancy granted for a term of years
certain exceeding one year, and only permits a request for a
tenancy where the tenancy granted is ‘for a term of years certain
and thereafter from year to year’. It does not seem to me that
these words give any basis for an inference that the draftsman
thought the expression ‘term of years certain’ might include a
term of less than one year. Indeed, it seems to me to indicate
the opposite, as it is difficult to envisage a tenancy granted for
say, three or six months, and thereafter from year to year.
The last relevant section referred to by Goulding, J, is section
43 (3) which reads as follows:
43. (3) This Part of this Act [i.e., Part II] does
not apply to a tenancy granted for a term
certain not exceeding three months
unless-
(a) the tenancy contains provision for
renewing the term or for extending it
beyond three months from its
beginning; or
(b) the tenant has been in occupation for

a period which, together with any
period during which any predecessor
in the carrying on of the business
carried on by the tenant was in
occupation, exceeds six months.
The equivalent Zambian provision is paragraph (g) of section 3

(2). In the context of the Zambian Act this provision may have
much greater significance than the English Act.
Goulding, J, also made a reference to section 38 (4) of the
English Act, but as there is no equivalent in the Act, no support
can be obtained from it in Zambia. By reason of these matters
and in particular by reason of the casus omissus argument on
section 24, Goulding, J, was able to find sufficient in the context
of the English Act to extend the meaning to include a tenancy
for six months.
As I have said, however, only one of the arguments which
prevailed with Goulding, J, applies in the Zambian context,
namely, that relating to paragraph (g) of section 3 (2) of the
Act. Section 3 (1) of the Act states that the Act shall, subject to
subsection (2), apply to all tenancies in Zambia. ‘Tenancy’ is
defined in section 2 in the terms already referred to earlier in
this judgment. Section 3 (2) then sets out in a number of
paragraphs the exceptions. Paragraph (g), which is in the terms
of section 43 (2) of the English Act, relates to tenancies granted
for a term certain not exceeding three months. These are
excluded unless they comply with certain other specified
conditions. This clearly implies that those tenancies granted for
a term certain not exceeding three months which comply with
the conditions are within the Act. If this is so, then the expression
‘a term of years certain’ cannot have its ordinary meaning. On
the other hand, however, it may be that the draftsman included
this by merely copying, without understanding it, from section
43 of the English Act. Subsection (2) of section 3 does not wholly
inspire one with confidence in the draftsman’s intentions. Many
of the exclusions are unnecessary. Paragraph (a) excludes
agricultural holdings. These are already excluded by the
definition of ‘business’ in section 2. Paragraph (b) excludes
premises let or used exclusively for residential purposes. These
are already excluded by the definition of tenancy. Paragraph
(d) excludes tenancies for a term certain exceeding twenty-one
years. These are already excluded by the definition of tenancy.
Section 4 of the Act enables the tenant of a tenancy to which
the Act applies to apply for a new tenancy:
(a) if the landlord has given notice under section 5 to
terminate the tenancy, or
(b) if the tenant has made a request for a new tenancy in
accordance with section 6.
Section 6 refers to applications made to the landlord for a new
tenancy. The terms of section 4 prohibit a tenant who has not
first made application to his landlord from applying to the court
unless the landlord has given notice of termination. It would
seem to be logical that all tenancies to which the Act applies
should be in this position. Clearly if the more extensive meaning
applies, this is not so, as it would be an extraordinary rarity for a
term of three months certain extendable for a further period to
fall within the expression ‘a term of years certain’ and thereafter
from year to year. It would of course be included if, in addition
to construing the term ‘a term of years certain’ as ‘a term
certain’, one went on to construe the expression ‘and thereafter
from year to year’ as ‘and thereafter from period to period’. I
see no reason why one should do this. Prima facie the fact that
a tenant for three months certain cannot apply to his landlord
for a new tenancy would point to exclusion from the Act.
However, closer examination shows that this is not so. The Act
itself even if one gives the ordinary meaning to ‘a term of years
certain’ does not permit all tenant covered by the Act to apply to
their landlord. Only those tenants who have tenancies for a
number of years and thereafter from year to year may apply.
Those tenants who merely hold for ‘a number of years certain’
without the further provision cannot apply.
It follows that whichever meaning is ascribed to the
expression ‘term of years certain’ the Act divides tenancies into
two classes:
(a) those who can apply for a new tenancy from their
landlords, and
(b) those who must await a notice of termination before
applying to the court.
The reason for this I have fortunately no need to inquire.
I have tried to obtain elucidation from other sections of the
Act. Section 8 (1) refers to ‘a tenancy to which this Act applies
being a tenancy granted for a term of years certain’.
Is this mere tautology, or is there some distinction between
‘the term of years certain’ to which the Act applies and ‘the
term of years certain’ which forms the tenancy, or is it merely

unconsidered copying of the English section 27. I do not know.
Section 21 (2) appears to support the view that tenancies
referred to in section 6 are in a special position vis-a-vis other
tenancies included in the Act.
Counsel for the plaintiff has also referred me to the expression
‘whether written or verbal’ in the definition of tenancy and argues
that by reason of section 4 of the Lands and Deeds Registry
Act all leases for more than one year must be in writing. He
argues that this indicates that the definition must refer therefore
to leases of less than one year’s duration. I am very doubtful on
this point. It does not seem to me that the effect of section 4 is
as suggested. The section does not state that leases for more
than one year cannot be created by parol, but merely states that
if they are created by a document, that document must be
registered. That does not appear to me to affect the position of
parol leases as governed by the Statute of Frauds which only
requires leases of three years or more to be in writing.
Furthermore, applying the Interpretation Act as already stated
enables the inclusion of leases for one year which clearly can
be parol.
Having considered all the points for and against and bearing
in mind particularly that if the more limited meaning is given to
the term in question, this Act would apply to very few tenancies.
I have come to the conclusion with considerable hesitation that
the indications given by paragraph (g) of section 3 (2) do enable
me to give a more extended meaning to the definition of tenancy.
Accordingly, I hold that the words ‘term of years certain’ in the
definition of tenancy can be read as ‘a term certain not exceeding
twenty-one years’ and therefore includes the term certain of
eleven months of the plaintiff’s tenancy.
Having arrived at this decision, the question then arises as to
the remedy. It is clear that if, as I have held, the Act applies to
the plaintiff’s tenancy from Mr Ladd, or as it may be now from
the defendant, it must also apply to the sub-tenancy of the
defendant from the plaintiff. It was for this reason that I required
evidence of what comprised the part of the premises occupied
by the plaintiff. I cannot make an order for possession which
would dispossess the defendant of a part of the premises which
he occupies by reason of the Act. I make an order for the
possession of that part of Plot 1671 which was occupied by the
plaintiff before it was taken over by the defendant in April 1973.
There is also part of the premises which was jointly shared by
the plaintiff and the defendant. The order of possession cannot
exclusively extend to that part but I order that the plaintiff be
given joint possession of such part.
On the claim for mesne profits, it does not seem to be that
any arise. The rent of the whole premises is K300. That has in
fact been paid by the defendant to Mr Ladd. If the plaintiff had
continued in possession he would have paid K300 to Mr Ladd
and recovered K150 from the defendant. Without proof that the
plaintiff’s portion of the premises could have been let for more
than K150 it does not seem to me that the plaintiff has lost in
rent. Defendant has paid the rent and that must be set off against
what would otherwise have been payable. The result is nil.
On the question of damages for trespass the plaintiff is entitled
to general damages, which may be exemplary, and is also entitled
to damages for any loss proved to have been suffered. He claims
to have paid K350 per month for new premises in Panganani
Road, but it is not clear for what period his sign-writing business
was carried on there. He says that because there was no
telephone he took the sign-writing business back to Lumumba
Road. No evidence was given as to what the rent of Lumumba
Road was, or what proportion was attributable to the sign-writing
business. In any event there would have to be offset the K150
which he had not paid in respect of the premises at Chifinga
Road. The plaintiff also claims to have hired a caravan for two
months at a cost of K60 per month and K30 for the parking
area. He did so because he had no telephone and wished to
remain in touch with his business premises at Chifinga Road.
He also claims that he had a lady clerk in charge of this caravan,
but gave no evidence as to what that cost him. He claimed that
his gross turnover fell at first from K1,200 per month to K418
and later recovered in July to K1,004. Generally his evidence
was that he used to make K700 profit on a turnover of K1,200
per month and that he now made K600 profit on a similar
turnover. None of these figures were supported by any books.
Plaintiff said he had paid K40 income tax in 1972 but could not
remember what he paid in 1973. It is for the plaintiff to prove
damage and he must do so properly. Clearly, unsupported figures
must be taken with caution.
This clearly is not a case for exemplary damages. The
defendant thought he had a legal right to the premises and that
he has not such a right depends on the obscure terms of the
statute. I consider that the plaintiff must have lost some profit
when his business was disrupted. I do not consider that it has
been properly proved that this loss is a permanent one or that
the plaintiff is making less now than he made at the time he was
dispossessed.
I give the plaintiff general damages of K200 for the trespass,
and I consider that a further sum of K750 will amply repay him
for any expenses caused and loss due to disruption. This makes
a total award of damages of K950.
On the question of an injunction I consider that the plaintiff is
entitled to one, but I do not consider that it should issue before
one week so as to enable the defendant to remove himself from
the plaintiff’s premises.
(b) Tenancy or Licence – Tenant in occupation for more or

close to seven months – unlawful or wrongful locking of
offices and seizure of goods
Mususu Kalenga Building Limited and Another v. Richmans Money

Lenders Enterprises [1999] ZR 27
Court delivered by MUZYAMBA, JS]
This is an appeal against a finding by the High Court that there

existed a tenancy agreement between the two parties and an
award of damages for wrongful detention of the respondent’s
goods.
The facts of this case are that the first appellant is a limited
liability company and owns a building on plot 6888 Freedom
Way, Lusaka with office space and the second appellant is its
Managing Director. The respondent is a firm. Mr Stanley Jere
is its Managing Director. Sometime in mid 1996 the parties
entered into an arrangement following which the respondent
occupied office number 8 at a rental of K120,000 per month
and a further amount of K3,000 for security. Document No. 17
in the record of appeal is a receipt dated 11th November, 1996,
from the 1st appellant for rent and security fees for the months
of November, December, 1996 and January, 1997. On 17 May,
1997, the appellants locked the office for non-payment of rent
and detained the respondent’s goods. At the hearing of this
appeal we were informed by Counsel for the respondent that
the goods were still being held by the appellant.
Mrs Mushota filed 4 grounds of appeal, three of which raised
issues, which were not raised in the court below. We have said
before and we wish to reiterate here that where an issue was
not raised in the court below it is not competent for any party to
raise it in this court. There is therefore only one ground for
determination by this court, namely whether or not there was a
tenancy agreement between the parties or indeed that the
respondent was a licensee as argued by Mrs Mushota.
It is common cause that the 1st appellant’s building is a
business premises. It is also common cause that the rent for
the office was payable monthly and that the respondent had
been in occupation of the office for a period of six months and
upwards before the appellants locked it. On these facts it was
argued by Mrs Mushota that the respondent was a licensee and
as such not protected by law. On the other hand Prof. Mvunga
argued that the facts show that the parties entered into a monthly
verbal tenancy agreement. That the Landlord and Tenant
(Business Premises) Act, Cap 193 (hereinafter referred to as
the Act) therefore applied.
We have examined the evidence on record and the ruling of
the learned trial Judge. We have also considered the arguments
by both learned Counsel and we are satisfied that the relationship
between the parties was that of Landlord and Tenant and not
licensor and licensee and that the tenancy between them was a
monthly tenancy. The Act, as Professor Mvunga rightly argued
therefore applied. That this is so is quite clear from section 3
subsection (2) (g) (I) of the Act, which provides as follows:
3. Subject to the provisions of subsection (2) this

Act shall apply to all tenancies in Zambia.
(2) This Act shall not apply to:
(g) Premises comprised in a tenancy granted for a
term certain not exceeding three months, unless:
(i) The tenancy contains provisions for renewing
the term or for exceeding it beyond three months
from its beginning.
The respondent was in occupation for more or close to seven

months before the office was locked. It was therefore incumbent
upon the appellants to comply with the provisions of the Act by
giving the respondent a proper notice terminating the lease if
the notice was not complied with to commence proceedings for
possession of the office and recovery of mesne profits. This

they did not do. They therefore acted at their own peril by
locking the office and detaining the respondent’s goods. We
therefore find no reason to interfere with the learned Judge’s
findings. The appeal is without merit.
The preceding case clearly shows the importance of the
distinction between a tenancy and a licence. A licensee is not
protected under Rent Act and Landlord and Tenant (Business
Premises) Act. The appellant’s Counsel’s argument that the
relationship between the parties was that of a licence and not a
tenancy was an attempt to avoid the application of the Landlord
and Tenant (Business Premises) Act, which provides for security
of tenure for tenants occupying business premises. Parties may
endeavour to avoid the control of the Rent Acts by granting a
licence instead of a tenancy. This attempt is usually at the instance
of a powerful landlord who would want to avoid the obligations
imposed on him by the Rent Acts.28
The Mususu Kalenga case again went up to the Supreme
Court on appeal from the Deputy Registrar’s assessment of
damages following the dismissal of the landlord’s appeal.29 The
Deputy Registrar had awarded the sum of K2,000,000.00 to the
appellant tenant for some of the goods that were lost. The
Supreme Court upheld the award by the Deputy Registrar on
the ground, inter alia, that the appellant tenant failed to lead
evidence of the value of the missing goods at assessment. On
loss of business arising from the locking up of the demised
premises, the cash flow projections of K3,377,938,171.00, relied
on by the appellants was rejected by the Deputy Registrar as
they were not prepared by a certified accountant. The Supreme
Court could not fault the Deputy Registrar as there was no
credible evidence upon which he could accept the cash flow
projections prepared by the appellant.
28
See chapter 5 on Leases and Licences, especially the cases of Street v. Mountford and NIP v. Zambia State
Insurance Corporation excerpted under the section dealing with case law.
29
See Appeal No. 68 of 2002.
(c) A Tenant who has been served with a notice to quit may
apply to the Court for a new tenancy
Minos Panel Beaters Ltd v. Chapasuka (1986) ZR 1
Court delivered by NGULUBE, DCJ, as he then was]
On 11th December, 1985, we allowed this appeal, reversed the

judgment appealed against and entered judgment for the
appellant. We ordered the grant of a new tenancy for a period
of two years with effect from 11th December, 1985, as agreed
between the parties. We said then that our detailed judgment
containing the reasons for the decision would be delivered later
and this we now do.
This is an appeal against the refusal by the High Court to
grant a new tenancy to the appellant on their application for one
under section 4 (1)(a) of the Landlord and Tenant (Business
Premises) Act, Cap 440 (hereinafter called the Act). The
appellant was a tenant since 1972 of the business premises in
issue which were held of the respondent, their landlord. It was
not in dispute that at the time of the events leading to this litigation
and at all material times the appellant held a periodic tenancy
from month to month. The landlord served a notice to quit under
section 5 of the Act, stating that he would oppose the grant of a
new tenancy on the ground specified under section 11 (1)(f) of
the Act in that he intended to demolish and reconstruct the
premises into a hotel. The tenant duly applied to the court under
section 4 for a new tenancy and the landlord’s opposition to the
application based on section 11 (1)(f) was unsuccessful. Despite
the failure to oppose successfully judgment was entered for the
landlord on two grounds: The first was that the monthly tenancy
was not one for a term of years certain in terms of the definition
of the word ‘tenancy’ in section 2 of the Act and was therefore
not a tenancy protected by the Act. The second was that a
tenant cannot apply to the court for a new tenancy after the
landlord has served a notice to quit.
The appellant has contended, through Mr Kunda his advocate,
that the learned trial Judge misdirected himself on both grounds.
As to the monthly tenancy being a term of years certain he
relies on Musingah v. Daka30 and S.J. Patel (Z) Limited v.
30
(1974) ZR 37.
Bancroft Pharmaceuticals Limited 31 both of which were High

Court decisions and both of which discussed the question of
what is a term of years certain. In Musingah, Doyle, CJ, held
that even a term of eleven months was a term of years certain
because, in the context of the Act (the language ‘term of years
certain’ meant a term certain not exceeding twenty-one years.
In S.J. Patel, Moodley, J, was able to find, on facts very similar
to those obtaining here, that a monthly tenancy which had run
from month to month over a period of twelve years was, by
virtue of section 3 (2)(g) (ii) of the Act, a protected tenancy. He
relied on Musingah to find that a term certain of less than a
year was a term of years certain within the definition of the
word ‘tenancy’ in section 2 of the Act. He also relied on the
definition of the phrase ‘term of years absolute’ set out at page
144 of the Third Edition of the Law of Real Property by Megarry
and Wade which reads:
‘Term of years absolute’

‘Term of years’ is defined as including a term of
less than a year, or for a year or years and a fraction
of a year, or from year to year. In effect ‘term of
years’ seem to mean a lease for any period having
a fixed and certain duration as a minimum. Thus in
addition to a tenancy for a specified number of
years (e.g. to x for g years), such tenancies as a
yearly tenancy or a weekly tenancy are ‘terms
of years’ within the definition for there is a minimum
duration of a year or a week respectively.
We must point out that in relying on the definition which we

have just quoted, Moodley, J, misdirected himself since it is
obvious that the definition relied upon is one contained in the
Law of Property Act, 1925, which is not one of the English
statutes applying to this country in terms of the British Acts
Extension Act, Cap 5 as well as the English Law (Extent of
Application) Act, Cap 4. However, we find that, despite the
misdirection, Moodley, J, still came to the correct conclusion
when he argued to the effect that, as the original term in a
monthly tenancy was for a month certain, that tenancy had been
one for an otherwise unprotected term certain, of less than three
months within the meaning of section 3 (2)(g) of the Act; but
31
(1974) ZR 270.
that, as the tenant had been in occupation for a period in excess
of six months the tenancy became protected by virtue of sub-
paragraph (ii) of section 3 (2)(g).
We must allude to the remarks which were made, obiter, by
Baron, DCJ, in Lusaka Auctioneers & Estate Agents Limited
v. Morton Estates Limited32 when he said from page 100:
The English Landlord and Tenant Act, 1954, applies

by definition to all tenancies, whether periodic or
for fixed terms. Our Act applies to tenancies ‘for
a term of years certain not exceeding twenty-one
years’. Doyle, CJ, in Musingah v. Daka construed
‘term of years certain’ as meaning a term certain
and held that the Act applied to a term certain of
eleven months, a decision with which I respectfully
agree; the same reasoning would make the Act
applicable to even shorter terms certain. But it
would be quite another matter to construe ‘term
certain’ as including a periodic tenancy. It may be
argued with some force that there is no practical
difference between a tenancy ‘for three months
and thereafter from quarter to quarter’ and ‘a
quarterly tenancy’; but English law has always
drawn a distinction, and the courts cannot pretend
that it does not exist.
It is evident that the learned trial Judge in this case felt

constrained to construe the expression ‘term of years certain’
in relation to the monthly tenancy in the manner Baron, DCJ,
feared it might be. Moodley, J, as already seen, came to a different
conclusion. We respectfully wish to endorse the reasoning which
Moodley, J, adopted when he referred to the initial term of one
month as a term certain. In any periodic tenancy such as monthly
or weekly or quarterly and so on, it is obvious that the initial or
original period with reference to which the tenancy itself comes
to be described or reckoned must be a definite period of fixed
duration such as one month and so on. In a monthly tenancy,
therefore, the letting can only be in the first place for one month
and thereafter from month to month. As the initial tenancy was
for a term certain of one month, it was a term certain not
exceeding three months as contemplated by section 3 (2)(g) of
32
(1977) ZR 92.
the Act. Continued occupation beyond six months brought the

tenancy under the protection of the Act in terms of the exception
in sub-paragraph (ii). Of course, we do not seek to pretend that
there is no distinction between a periodic tenancy as such and
one simply for a term certain - the latter has a definite and fixed
duration while the former is reckoned by the period agreed or
implied (such as by the conduct of the parties) and does not
expire without notice at the end of the period or at the end of
each succeeding period. The critical point here is that there is in
fact an initial definite period and the springing interest which
arises at the beginning of the next period results in the tenant
remaining in occupation, as envisaged by section 3 (2)(g) (ii)
which can reasonably be interpreted in this vein if it is to be
given any effect at all. In any case, if the legislature intended to
exclude such periodic tenancies, it would have plainly said so.
In which event, there would have been no need to make any
reference to ‘a periodical tenancy’ under the definition of ‘notice
to quit’ in section 2.
The courts have endeavoured, in the cases to which we have
referred, to draw attention to the difficulties created by the
language used in describing the tenancies intended to be protected
by or excluded from the protection of the Act. Prima facie,
therefore, section 3 (1) intends that the Act should apply to all
tenancies except those mentioned in sub-section 2 of section 3.
The provision which arise in this case and which necessarily
extend the scope of tenancy to be protect are those in section 3
(2)(g) (ii) which reads:
3 (2) This Act shall not apply to-

(g)Premises comprised in a tenancy granted for a
term certain not exceeding three months; unless -
(ii) the tenant has been in occupation for a period
which, together with any period during which any
predecessor in the carrying on of the business
carried on by the tenant in occupation, exceeds
six months.
The reference in sub-paragraph (ii) to the fact that mere

occupation beyond the period of a tenancy initially granted for a
term certain not exceeding three months will bring about
protection if the occupation exceeds six months is surely a good
indication that the legislature cannot have intended to deprive
persons in the appellant’s position of such protection. Where in
fact it is possible to find an initial term certain of fixed and definite
duration and either such term certain is sufficiently long on its
own to fall within the Act or, if it is of insufficient duration, it is
coupled with the requisite period of occupation referred to in
sub-paragraph (ii), which we have quoted, then it is plainly the
court’s duty to give effect to the true intention of the legislature
which was the protection of tenants against unwarranted
evictions.
To summarise, we find that as a monthly tenancy, though
periodic, begins with a month certain and as section 3 (2)(g) of
the Act extends protection to such a short term certain if there
has been the appropriate period of occupation (as there was in
this case) the tenancy was one to which the Act applies. We
should also mention that Mr Mbushi conceded to the ground of
appeal in this respect. As to the finding that a tenant served with
a notice to quit cannot apply to the court, the appellant’s
submission, which is entirely correct, is that the learned trial
Judge erroneously confused an application to the court with a
request to a landlord under section 6 in particular its sub-section
(4). No such request can be made by a tenant to his landlord
after the latter has served notice to quit. On the other hand
section 4 specifically provides for application to the court after
a notice to quit where tenant indicates that he will not give up
possession or after a request has been made to a landlord who
does not accede to such a request. The sub-section under section
6 which the learned trial Judge misread as barring an application
to the court has in fact no bearing upon and does not arise in this
case. Mr Mbushi, who had originally intended to argue against
this ground of appeal on the same basis as the learned trial
Judge had dealt with the case, quite properly abandoned his
argument when he saw that, had the learned trial Judge not
misapprehended the two situations envisaged under these two
sections - which are distinct and separate, he could not have
held as he did. It was for the foregoing reasons that we upheld
the appeal, reversed the judgment below and granted the new
tenancy...
In Paperex v. Deluk High School Limited,33 the Supreme

Court emphasised the procedure that a tenant who has been
served with a notice to quit (and who is still desirous of remaining
on the premises) has to follow. Ngulube, CJ (as he then was)
33
observed and commented thus in the course of delivering the

judgment of the court:
A notice to quit was served on the respondent who

failed to apply for a new tenancy. Finally, the
appellant issued a writ to recover possession and
it was in that action where the respondent
counterclaimed for the grant of a new tenancy. Of
course, this is not the procedure tenants served
with notice to quit should emulate; under the
relevant Act, it is up to the tenant to apply to court
for a new tenancy within the period laid down
otherwise the tenancy determines and ceases to
be a protected one. It is inadvisable, therefore, for
a tenant to wait until the landlord sues for
possession to make a frantic counterclaim for a
new tenancy; that is not what the relevant Act
stipulates.
A landlord may rely on a notice to quit given by a previous

landlord. In Appollo Refrigeration Services Co. Ltd v. Farmers
House Ltd,34 Ngulube, DCJ, as he then was, observed and
commented thus:
Mr Musanya in his second ground of appeal argued

that the learned trial Commissioner erred in holding
that the respondent could rely on notice to quit which
the previous landlord had served on the appellant.
He is not able to cite any authority but nevertheless
contends that the respondent should not have relied
on a notice served by the previous owners of the
property. In fairness, we should record that Mr
Musanya eventually accepted that, since the new
landlord took the property subject to the tenancies,
he also took all the advantages including any
notices already given by the previous landlord. In
any case, there is authority in support of the
proposition to which we have made reference
namely, that notice to quit given by a previous
landlord is available to new landlord who has similar
intentions of redeveloping the property - which was
34
(1985) ZR 182, at pp. 183 - 184.
the ground upon which the notice was given in this
case and such new landlord can resist a request
for new tenancy on the same ground as the
previous landlord. We refer to AD Wimbush and
Son Limited v. Franmills Properties Limited and
Others. 35
(d) Landlord and Tenant – Landlord and Tenant (Business

Premises) Act. Ground for opposing New Tenancy-
Section 11(1) (e) – more valuable as a whole - A Landlord
is restricted from opposing a new tenancy on any ground
other than that set out in the notice to quit
ZIMCO Properties Limited v. Dinalar Randee Enterprises (T/A

Empire Cinema) (1988/89) ZR 114
Court delivered by NGULUBE]
This is an appeal against a judgment of the High Court granting

a new tenancy to the respondent. There is also a cross-appeal
against the finding in the same judgment that the appellant had
proved that it was entitled to possession of the property.
The facts of the case were that the appellant was the owner
of Findeco House in Cairo Road, Lusaka and had let part of the
premises consisting of a cinema hall and office to the respondent.
It was intended that the parties should enter into a written
tenancy agreement, a draft of which was prepared, but this
agreement was never signed, and the respondent occupied the
premises on a verbal agreement at a monthly rental agreed
between the parties from the 27th February, 1985. On the 29th
January, 1988 the appellant served the respondent six months
notice to terminate tenancy.
Paragraph 3 of the notice read as follows:
3. ZIMCO Properties Limited would oppose an

application to the court under the Act for the grant
of a new tenancy on the ground that on the
termination of the current tenancy the landlord
requires possession of the holding for the purpose
of letting or otherwise disposing of the said property
35
[1961] 2 All ER 197.
as a whole in favour of the Zambia Industrial and

Mining Corporation Limited (ZIMCO Limited) the
sole majority shareholder of ZIMCO Properties
Limited - (Landlord), and that in view thereof the
tenant ought not to be granted a new tenancy - s.
11(1) (e) Cap 440.
The respondent thereupon gave notice of application for a new

tenancy and issued an originating notice of motion claiming such
a new tenancy. In the affidavit in opposition to the claim for a
new tenancy the appellant’s representative averred that since
the giving of notice to terminate the tenancy, the premises known
as Findeco House has been transferred to a holding company
known as ZIMCO Limited, on the 1st April, 1988. At the hearing
of the application before the High Court the applicant’s witness
gave evidence that he required to continue in possession of the
premises, that he had always paid the rent due and, in answer to
the claim that ZIMCO Limited required the whole of the premises
for occupation as offices by their staff, that many other tenants
had not been given notice to quit. The witness for the appellant
gave evidence that ZIMCO Limited had requested the transfer
of the whole of Findeco House because they faced an acute
shortage of office accommodation. He said that the building
was handed to ZIMCO Limited from the 1st April, 1988. The
second witness for the appellant, the group secretary of ZIMCO
Limited, said that ZIMCO Limited required Findeco House for
office accommodation and that it was intended that the cinema
occupied by the respondent should be used as a meeting hall for
the company. He said further that it was intended to spend
K5,000,000-00 on rehabilitating the lifts in the premises and
K10,000,000-00 to improve the whole building. He said that, if
not given possession of the respondent’s part of the premises,
ZIMCO Limited would not benefit from the proposed repairs.
In cross-examination this witness said that the certificate of title
was still in the name of the appellant but that it was intended
that it should be in the name of ZIMCO Limited and the transfer
which had already been affected was by administrative
arrangement. In re-examination this witness said that the landlord
at the time of hearing was the appellant and not ZIMCO Limited.
The learned trial commissioner in his judgment said that in
answer to the question on whether the landlord had given a
sound reason for wishing to repossess the property he would
say without hesitation that he believed that ZIMCO Limited did
need more rooms for its employees, and this could not be said to
be a misplaced ground.
The learned trial commissioner said as follows:
Repossession of property by a landlord for the

purpose of accommodating its own staff is within
the meaning of Section 11 (1)(e) of the Act, Cap
440.
The learned trial commissioner then went on to say that the

respondent had not had the opportunity to find alternative
accommodation and for this equitable reason and solely on the
basis of equity he made an order that the respondent be granted
a new tenancy for two years.
It is against that granting of a new tenancy that the appellant
now appeals and it is against the learned trial commissioner’s
finding that the repossessing of the property by the landlord for
the purpose of accommodating its own staff was within the
meaning of section 11 (1)(e) of the Act that the respondent now
cross-appeals.
At the outset it was conceded by Mr Mitchley, on behalf of
the respondent that the learned trial Judge could not have granted
a new tenancy on equitable grounds in the circumstances of this
case. The appellant’s appeal in this respect, therefore, fell away
and Mr Mukelabai on behalf of the appellant, therefore, had
only to answer the cross-appeal.
There was a considerable amount of argument by Mr
Mukelabai as to who was the actual owner of the property, but
at one stage in his argument he maintained that he had no
intention of abandoning his claim that ZIMCO Limited was the
owner of the property and needed the property for its office
use. Mr Mukelabai then went on to explain to the court why he
claimed that the owner of the property was entitled to the
possession of the property to let to the respondent. He argued
that in section 11 (1)(e), in addition to a requirement by a landlord
of possession for the purpose of letting the whole of the premises,
the subsection refers to ‘or otherwise disposing’ of the property
as a whole. On this basis he argued that, so long as the landlord
of the whole of a block of property of which the disputed
premises were part could prove that the property required was
for occupation by its employees, the conditions of section 11
(1)(e) were satisfied and that there was no need for there to be
a superior landlord or a proof that a subletting of the whole of
the premises would be economically more beneficial. Following
this argument Mr Mukelabai maintained that, as ZIMCO Limited
was the new owner of the property and the new landlord in
relation to the respondent, the company had proved its entitlement
to possession. When pressed by the court Mr Mukelabai agreed
that he was arguing that, if a purchaser of the whole of a block
of property wanted vacant possession for himself, a vendor could
obtain possession under section 11 (1)(e) in order to dispose of
the premises as a whole. It was at this stage that Mr Mukelabai
resiled from his original claim that ZIMCO Limited was now
the owner of the property and instead maintained that there had
been no change of landlord since the service of the notice to
quit and that although the property was in the process of being
transferred to ZIMCO Limited the appellant was still the landlord
in view of the absence of the certificate of title in the name of
ZIMCO Limited.
Mr Mitchley argued that there were two principles to be
applied in this case. The first was that the landlord is restricted
from opposing a new tenancy on any ground other than that set
out in the notice to quit. The other was that section 11 (1)(e)
could only apply when there was a superior landlord and when
there was proof that a letting of property as a whole would be
economically beneficial.
In support of his first point Mr Mitchley drew the court’s
attention to Woodfall’s Law of Landlord and Tenant, Vol 2
paragraph 2-0573. This paragraph deals with sections in the
Landlord and Tenant Act, 1954, which are practically identical
with sections in the Landlord and Tenant (Business Premises)
Act, Cap. 440.
Having set out that a notice to terminate a tenancy is invalid
unless it states whether the landlord would oppose an application
to the court for the grant of a new tenancy, and if so, also states
on which of the grounds mentioned in section 11 he would do so,
the paragraph goes on to say that this matter should be considered
with care since what is stated in the notice binds not only the
landlord but also his successors and may well in some
circumstances preclude any effective opposition to an application
for a new tenancy, save as regards the terms thereof. We
would comment here that the reference to a landlord’s successors
is in conformity with the principle set out by this court in the
case of Apollo Refrigeration Services Co. Ltd v. Farmers
House Ltd, 36 where we said that a landlord’s successors
requiring possession may adopt the reasons set out in the
landlord’s notice to terminate the tenancy. There are comments
in the paragraph to which we refer to the effect that the notice
by a landlord should be liberally construed, and, provided that
the notice makes clear an intention to rely on any particular
paragraph of section 11 the landlord can rely on any facts falling
within that paragraph or a portion of it. Whatever liberal a
construction is allowed, however, the effect of the principle is
that a landlord is restricted from opposing the grant of a new
tenancy on any ground other than that set out in the notice.
Applying that principle to Mr Mitchley’s second argument, it
is necessary to consider the relevant paragraph in our law.
Section 11 (1)(e) reads as follows:
(a) where the current tenancy was created by the

subletting of part only of the property comprised in
a superior tenancy and the landlord is the owner
on the termination of the superior tenancy, that the
rents reasonably obtainable on separate lettings of
the holding and the remainder of the property would
be substantially less than the rent reasonably
obtainable on a letting of the property as a whole,
that on the termination of the current tenancy the
landlord requires possession of the holding for the
purpose of letting or otherwise disposing of the said
property as a whole, and that in view thereof the
tenant ought not to be granted a new tenancy.
Mr Mitchley drew our attention to the same volume of Woodfall

at paragraph 2-0716 which refers to an identical subsection in
the English Act and states that it is of no application where the
competent landlord is also the immediate landlord and applies
where the landlord is a superior landlord whose interest extends
to a large unit of property of which the tenant’s holding is part
only. Woodfall goes on to explain the provision by saying, ‘If
such a superior landlord can show that a better rental yield will
be got by letting the property as a whole, and that he requires
possession of the holding for the purpose of letting or otherwise
disposing of the property as a whole, the court has discretion to
36
(1985) ZR 182.
decide that in view thereof, the tenant, ought not to be granted a

new tenancy.’ Mr Mitchley’s argument was that as the appellant
is the immediate landlord in this particular case, the paragraph
relied on can have no application. His further argument was
that, in any event, there was no evidence put before the trial
court that a better rental yield would be got by letting the property
as a whole, and the appellant had failed to prove that it’s claim
came within the terms of section 11 (1)(e). Finally Mr Mitchley
referred us to subsection 2 of section 11 which reads as follows:
(2) The landlord shall not be entitled to oppose an

application on the ground specified in paragraph
(g) of subsection (i), if the interest of the landlord,
or an interest which has merged in that interest
and but for the merger would be the interest of the
landlord, was purchased or created after the
beginning of the period of five years which ends
with the termination of the current tenancy, and at
all times since the purchase or creation thereof
the holding comprised in a tenancy or successive
tenancies has been occupied wholly or mainly for
the purposes of carrying on business thereon.
It was argued that, as the interest of ZIMCO Limited in the

property had been created, on the evidence, either on 1st April,
1988 or on a later date when the property was formally registered
in its name, that company could not oppose an application for a
new tenancy for the purpose of occupying the premises for its
own business until the expiry of five years from the relevant
date of acquisition.
On the grant of a new tenancy, Mr Mitchley argued that it
did not matter who was now landlord of the property because,
on the failure of either the appellant or ZIMCO Limited to prove
that they have a valid right to oppose under section 11 (1), the
court had no alternative but to grant a new tenancy as applied
for. In reply Mr Mukelabai argued that the purpose of section
11 (2) would not be defeated by granting an order of possession
because ZIMCO Limited did not intend to carry on a business
but only intended to use the premises for office purposes. We
will deal with this last point immediately and say that the definition
of ‘business’ in section 2 of Cap 440 quite clearly includes the
use of premises for office purposes.
As we have already indicated we accept Mr Mitchley’s
contention that a landlord when opposing the grant of new
tenancy is bound by the reasons given in his notice of termination.
The reason for this, as suggested by Woodfall, is that the notice
of termination is in the nature of a pleading. The only difference
is that such notice cannot be amended, and if a landlord wished
to advance some other reason for opposing a grant of a new
tenancy, the original notice would have to be withdrawn and a
new one served. In this case the notice, although it referred to
section 11 (1)(e) did not set out any of the reasons set out in the
paragraph but only the reason that the appellant wished to dispose
of the property to ZIMCO Limited. It is necessary, therefore, to
deal with Mr Mukelabai’s argument that the use of the words
‘or otherwise disposing of’ in paragraph (e) meant that there
was no need to consider the existence of a superior landlord or
subletting or the question of obtaining a better rental yield by
letting the whole of the property. We have considered the
wording of paragraph (e) and we are satisfied that the various
parts of the paragraph are not in the alternative and that all the
provisions set out therein would have to be proved before a
landlord could successfully oppose the granting of a new tenancy
for the reasons set out in the paragraph. With regard to the
question of whether or not in Zambia there could be a superior
landlord within the terms of the paragraph, we do not agree
with Mr Mukelabai that because the State or the President is
the only superior landlord in Zambia these provisions of the
paragraph cannot apply. Despite the provisions of the Lands
(Conversion of Titles), Act Cap 289, there is no reason why in
this country there should not be a succession of landlords some
of whom would come within the definition of superior landlords.
We find, therefore, that in order to satisfy the provisions of
section 11 (1)(e) a landlord would have to show the existence of
a superior tenancy (other than that from the State) and that the
landlord is the owner of the property at the termination of such
superior tenancy and that a better rental yield would be got by
letting the property as a whole and that on termination of the
current tenancy such landlord requires possession of the holding
for the purpose of letting or otherwise disposing of the said
property as a whole. It will be seen, therefore, that we construe,
as does Woodfall, the word ‘landlord’ in the paragraph as
meaning a superior landlord and not the immediate landlord. We
say this because the words of the paragraph specifically refer
to the landlord as being the owner on the termination of a superior

tenancy.
Despite Mr Mukelabai’s argument, we are of the opinion
that to treat a transfer to a holding company for the purpose of
allowing that company to oppose the grant of a new tenancy on
the ground that it needed to accommodate its employees in the
premises, before the expiration of five years from the date of
such transfer, would defeat the object of section 11 (2).
It follows that in considering the provisions of section 11 (1)(e)
we agree with Mr. Mitchley’s argument that the appellant did
not produce any evidence to bring itself within the provisions of
paragraph (e). Even if the paragraph referred to the requirements
of an immediate landlord, which we have found it does not,
there was no proof whatsoever of an intention to let or otherwise
dispose of the property as a whole in order to obtain a better
rental yield. We are satisfied that the purpose of obtaining a
better rental yield goes to the root of the provisions of paragraph
(e), and such evidence thereof is absolutely vital to a successful
opposition under that paragraph to the grant of the new tenancy.
For the reasons we have given, the cross-appeal succeeds and
we find that the appellant had no valid claim to oppose the grant
of a new tenancy to the respondent. The appellant’s own appeal,
therefore, falls away. As to who is or should be the appropriate
landlord to grant such a new tenancy we do not consider it
proper for this court to decide; especially having regard to the
contradictory assertions made by Mr Mukelabai, who claims to
appear before us both on behalf of the appellant and on behalf
of ZIMCO Limited. As we have found, the respondent is entitled
to the grant of a new tenancy. It is for the parties to agree to the
terms thereof under the provisions of sections 15, 16 and 17 of
Cap 440, and in default, such terms must be put before another
judge of the High Court for approval. In default of such
agreement we send this case back to another judge of the high
Court with directions that he make a declaration as to who is
the appropriate landlord to grant a new tenancy to the respondent
and thereafter to grant a new tenancy to the respondent on
such terms as he may deem fit. Costs in this court and in the
court below to the respondent. The costs of the application to
the High Court reserved to the High Court.
Paragraph (e) of section 11(1) of the Landlord and Tenant
(Business Premises) Act which was in issue in this case as a
ground of opposition to grant a new tenancy provides that:
(e) where the current tenancy was created by the
subletting of part only of the property comprised in
a superior tenancy and the landlord is the owner
on the termination of the superior tenancy, that the
aggregate of the rents reasonably obtainable on
separate lettings of the holding and the remainder
of that property would be substantially less than
the rent reasonably obtainable on a letting of that
property as a whole, that on the termination of the
current tenancy the landlord requires possession
of the holding for the purpose of letting or otherwise
disposing of the said property as a whole, and that
in view thereof the tenant ought not to be granted
a new tenancy.
The learned authors of Woodfall’s Landlord and Tenant, have

observed that this ground or paragraph is rarely used in practice
and that its overall purpose is to prevent a landlord from serious
prejudice caused by inheriting sublettings created by his own
tenant. 37 In Betty’s Café v. Philips Furnishing Stores
Limited,38 Viscount Simmons when dealing with the 1954 English
Landlord and Tenant (Business Premises) Act, (which has
identical sections to our Act) described the identical paragraph
to paragraph (e) of section 11(1) of our Act as not ‘wholly
intelligible.’39
(f) Once a landlord satisfies the Court on any one or more of

the grounds on which a landlord is entitled to oppose the
application under section 11 of the Act, the availability of
alternative accommodation is irrelevant
Afro Butcheries Limited v. Evees Limited (1987) ZR 39
This is an appeal by a tenant whose application to a High Court

judge for a new tenancy under section 4 of the Landlord and
Tenant (Business Premises) Act, Cap 440, was unsuccessful,
the landlord having opposed the application on the ground
37
Woodfall’s Landlord and Tenant, vol. 2. London: Sweet and Maxwell (1994), paragraph 22.104, at p. 22/87
38
[1959] AC 20.
39
Ibid., 20, 32.
specified in section 11(1)(g) i.e., that on the termination of the

current tenancy, the landlord intends to occupy the holding for
the purposes, or partly for the purposes, of a business carried
on by them therein. The facts of the case were that the landlord
served a valid notice to quit specifying the said ground as the
one it would rely upon to oppose the tenant’s application. The
tenant properly applied to the High Court for a new tenancy and
in that application set out its proposals regarding the terms of a
new tenancy. The property concerned is a butchery located on
a portion of stand No. 728 Cairo Road, Lusaka, which the
tenant has occupied since 1973. The landlord operates a shop in
the same building and next to the butchery while other portions,
not having a frontage on Cairo Road, are let to various other
tenants.
The tenant supported its application by an affidavit which,
instead of simply verifying the application and the proposals,
stated that the landlord had been requesting the tenant to pay
revised rents and the tenant had been resisting; that the landlord
had previously attempted to obtain from the court an order for
possession but had failed because there was no valid notice to
quit; and that, in the tenant’s opinion, the landlords’ notice to quit
and the opposition to the application were mala fide because of
the previous disagreements over increased rents, and because
it had previously lost a court case. The landlord filed an affidavit
and also called a witness. The landlord dealt with the allegations
made by the tenant and also deposed through its witness to the
effect that it required the premises in order to establish another
line of business and to expand the facilities available to it for the
proposed as well as the existing business. It was also disclosed
that the tenant had another butchery in another part of Lusaka.
The arguments and the submissions were directed at the issues
which we have outlined and which the parties themselves had
raised. At the conclusion of the hearing, the learned trial judge
found to the effect that the Act exists for the protection of the
interests of both the landlord as well as the tenant; that the fact
that the tenant had another butchery elsewhere was a relevant
factor since the Act allegedly required the landlord to ensure
that the tenant had alternative accommodation before eviction
could be effected; that the inconvenience to be suffered by the
tenant in moving his workers and equipment to the other butchery
could not outweigh the legitimate wishes of the landlord to use
its premises to improve its business; and that ultimately the tenant
had failed to advance sufficient and convincing reasons to compel
him to grant a new tenancy.
As will soon appear, there were a number of misdirections in
the approach adopted by the learned trial judge and in the factors
sought to be material in this case. Most of these errors, if not all
of them, were in fact occasioned by the approach which the
parties adopted in raising the various issues and in the presentation
of their respective cases. The first ground of appeal illustrates
the continuing misapprehension on the part of the tenant as to
the nature of the application for a new tenancy. The ground
alleges that the learned trial Judge erred in law and in fact to
have held that the tenant did not advance sufficient and
convincing reasons to compel the court to grant a new tenancy.
The arguments in support have been to the effect that the learned
trial judge ought to have accepted that the landlord was not
genuinely in need of the premises and had served a notice to
quit only because of previous disagreements over proposed
increases in rent. As we see it, this ground of appeal (but without
the supporting arguments), would state an entirely valid criticism.
In an application for a new tenancy, the onus can never be on a
tenant to advance sufficient and convincing reasons to compel
the court to grant a new tenancy of business premises. On the
contrary, the tenant must have his new tenancy unless the landlord
satisfies the court on any one or more of the grounds on which
a landlord is entitled to oppose the application. The onus is on
the landlord to convince the court on his ground of opposition,
and the only ‘burden’ which the tenant can be said to bear is
that of demolishing his landlord’s ground rather than discharging
any primary burden of establishing his own entitlement to a new
tenancy. That this is so can be illustrated by a brief glance through
the Act itself: Under section 4, not only does the contractual
tenancy not come to an end but, the tenant is allowed to apply
for a new tenancy if, for instance, the landlord has served a
notice to quit; by the terms of section 5 (6) such notice must
have specified the ground under section 11 on which the landlord
would oppose the tenant’s application; and the language of section
11 in stating that ‘the court shall make an order’ makes it
abundantly clear that, in order for the court to refuse to grant a
new tenancy, the court must have been persuaded by the
landlord to accept his ground under section 11 for opposing the
tenant’s application. To the extent, therefore, that the learned
trial judge suggested that it was for the tenant to satisfy him, this
was a misdirection.
However, the learned trial judge did find in a way that the
landlord actually required the premises for its own business. Mr
Mwansa’s arguments were to the effect that the landlord had
no bona fide intention to use the premises for its own business
but invoked section 11(1)(g) as a way of being rid of the tenant
on account of disagreements over proposed rent increases. He
relied on correspondence where increased rent was demanded
by the respondent and resisted by the appellant. He also relied
on the evidence given on behalf of the landlord in which there
was a complaint against the tenant for refusing to pay realistic
rent. Mr Hamir argued in opposition and submitted that the
learned trial judge had made a correct finding when he held that
the landlord desired to occupy the premises for a business it
intended to conduct. His argument was that the appellant had
not demonstrated any misdirection or error on the part of the
learned trial judge in coming to this conclusion.
When a landlord’s opposition to a grant of a new tenancy is
based on an intention to do one or other of the matters specified
under s.11, such as an intention to occupy or to demolish and
reconstruct, it is a question of fact whether, at the appropriate
time and right down to the date of hearing, the landlord did have
a firm and settled intention not likely to be changed: See Fleet
Electrics v. Jacey Investments.40 The landlord must genuinely
intend to occupy the premises himself and must, on an objective
test, have a reasonable prospect of bringing this about, that is,
there must be no insurmountable obstacles - such as with planning
permission for the proposed user and so on: See Gregson v.
Cyril Lord.41 It is useful to refer to the English decisions on
points which they have considered, not only because of their
persuasive value, but more importantly, because our own Act is
in many respects virtually word for word the same as their
Landlord and Tenant Act of 1954, and their courts were thus
considering similar issues based on identical legislation. The
learned trial judge did consider the history of the relationship
between the parties and the contention by the tenant that the
landlord’s opposition was not advanced in good faith but with
mala fide intentions. He also considered the landlord’s evidence
to the effect that there was a genuine desire to expand its
business operations. Although the learned trial Judge apparently
accepted the landlord’s evidence, he went on to give reasons
not strictly relevant to the issue.
40
[1956] 3 All ER 99.
41
[1962] 3 All ER 907.
The learned trial Judge considered that one of the matters to
be taken into account is that the landlord should ensure that the
tenant has alternative accommodation and, because the tenant
had another butchery, it was seeking additional accommodation
and this would not be granted at the expense of the landlord
because the inconvenience of shifting to the other butchery
‘cannot be so weighty a ground upon which the owner of the
premises can be denied the use of its premises to improve its
business’. Under paragraph (g) of section 11 (1), the question
of alternative accommodation is irrelevant and does not arise.
That consideration only arises, for example, in cases falling under
paragraph (d) with which we are not here concerned. In view
of the course we propose to take, it is unnecessary to deal with
the rest of the arguments, including the argument, which is clearly
untenable that the landlord is in any way fettered by the Act in
the type of business which he can carry on if he opposes
successfully.
The learned trial Judge’s ultimate finding in favour of the
landlord was, we consider, greatly influenced by the misdirections
on the burden of proof and the criteria to be taken into account,
as discussed hereinbefore. As these misdirections were
fundamental, the judgment based on them cannot stand and we
propose to set it aside. However, we also find that the issues
raised, concerning the genuineness of the landlord’s intention,
are such that they can only be resolved on a matter of credibility
before a trial court dealing with the application and correctly
directing itself. Such trial court would have to make a finding of
fact on the landlord’s alleged intention and may also have to
deal with an application by the tenant, under section 19 for
compensation if a new tenancy will still not be granted. In that
event, the trial court will have to deal with the question of
possession as well since we consider it wholly unjustifiable and
unnecessary that there should be a multiplicity of actions which
we understand to be the case here, where the landlord is reported
to have commenced a new action for possession. Section 13 of
the High Court Act, Cap 50, requires that once the parties are
properly in court, all relevant issues between them should be
resolved and further new litigation obviated. The cases, such as
Apollo Refrigeration Services Co. Ltd v. Farmers House Ltd42
concerning a landlord’s action for possession, relate to a landlord’s
42
(1985) ZR 182.
own original action for possession and were in no way intended

to exclude the operation of section 13 of Cap 50 in a case where
there are already valid proceedings brought by a tenant. If, on
the rehearing, a new tenancy will be granted, the court will no
doubt also consider the proposals made and any counter proposals
which may include the payment of realistic rent both in the
interim and under the new tenancy. The parties and the court
may wish to seek guidance generally from Order 97 R.S.C.
1985 White Book and other English texts.
It follows from what we have been saying that the appeal is
allowed; the decision below set aside; and a rehearing ordered
before a different judge of the High Court.
Following the hearing of the retrial before another Judge as

ordered by the Supreme Court, the trial Judge held that the
landlord had genuine intentions to occupy the premises for its
own business. The tenant again appealed to the Supreme Court.
Afro Butcheries Limited v. Evees Limited Supreme Court Appeal

No. 28 of 1998
[The facts of the case appear from the Judgment of Supreme Court
delivered by NGULUBE, DCJ, as he then was]
This is an appeal of a tenant of business premises against the

determination by a High Court judge to the effect that the landlord
had successfully established his ground for opposing the tenant’s
application for a new tenancy. This case is coming before us
for the second time now. On the first occasion, we found that
the learned trial Judge at the first had misdirected himself on
what was required to be established before him to enable him to
resolve the application which was made by the tenant. This
appeal arises out of the retrial which we ordered. The
Respondent landlord gave notice to quit specifying that, in terms
of section 11(g) of the Landlord and Tenant (Business Premises)
Act, he required the premises for the purpose of running a
business to be carried on by himself in it. The landlord supported
his opposition to the tenant’s application by viva voce evidence
in which one of the director’s explained that the landlord company
was established for the benefit of the family and that they were
proposing to open a chemist’s shop in the premises where the
tenant presently operates a butchery. The witness for the
landlord further explained what the various responsibilities for
the family were which had to be catered for, hence the need to
expand the business operations.
At the end of the hearing, the learned trial Judge was satisfied
that the landlord had a genuine intention to occupy the premises
for its own business to be carried own by itself therein and was,
therefore, satisfied that the landlord has successfully opposed
the tenant’s application.
On behalf of the tenant, Mr Mwansa has filed elaborate
arguments most of which set out what this court had said in this
very case at the first hearing on such matters as the burden of
proof on an application for a new tenancy. Indeed Mr Mwansa
has also quoted from our more recent unreported decisions on
similar issues. We agree with the law as recited by Mr Mwansa
since that is in fact what we ourselves have said. This is to the
effect that, on an application for a new tenancy, a tenant will
normally obtain a new tenancy as a matter of course unless the
landlord satisfies the court on his ground for opposing the
application. But once the landlord successfully opposed which
Mr Mwansa has advanced for attacking the finding that the
landlord had established the ground for opposing was that, in his
submission, it is wrong for a landlord which is a limited company
to argue that the proposed new business is to be carried on for
the benefit of parents, brothers, and other family members of
the owners of the company when such persons are not the
company’s relatives, such as shareholders or directors. As
interesting as the argument is, we find that there is no merit in
whatsoever. It is unrealistic to argue that a limited company
which is owned by natural persons cannot be used to promote
the benefit and interests of those natural persons, including the
very reasonable interest of looking after the family. We dismiss
that ground of appeal.
Mr Mwansa has also, on the spur of the moment, advanced
an additional argument, challenging the validity of the notice to
quit which was given on the ground that it was signed on behalf
of the landlord by their advocate instead of by the landlords
themselves. We are quite familiar with the Landlord and Tenant
(Business Premises) Act and we are satisfied that nowhere
does it preclude the professional agent for anyone lawfully
authorised by the landlord from signing a notice on behalf of the
landlord. That ground, too, it singularly lacking in merit.
There are no other grounds advanced and for that reason
we saw no reason to call upon Mr Hamir to address the court.
In his written grounds of appeal, and heads of arguments. Mr

Mwansa has made only one useful submission and that is that,
should we hold against him, there should be an order for
compensation in favour of the tenant. We believe this is in
terms of section 19 of the Act.
The appeal itself is, for the reasons which we have given,
dismissed with costs to the landlords to be taxed in default of
agreement. But we do allow and make an order for
compensation under section 19 and, for that purpose we grant
liberty to the tenant to apply to the Deputy Registrar in case the
parties fail to agree on the amount of compensation, the maximum
of which is fixed by the section at not more than three times the
amount of annual rent. We also consider that, since these were
business premises, it would only be fair to allow the parties a
grace period within which to wind up their affairs. For this
purpose, the tenant will have three months from today in which
to vacate.
Mr Hamir has applied that the learned Deputy Registrar
should also consider the landlord’s cross-application for mesne
profits in this matter. There being no objection and indeed since
we cannot see any ground or possible ground for any objection,
we order that the Deputy Registrar will also determine the
question of mesne profits in case the parties fail to agree on this
item as well. We have also heard arguments with regard to the
costs of the previous proceedings in the court below and here.
We note that the learned trial Judge in the second action - to
whom the costs for the previous appeal and the previous trial
had been reserved with a view that those should abide the
outcome of the retrial - ordered that each party bear its own
costs. We have considered the arguments advanced on both
sides and, since this is a rehearing on the record, we are at large
on the question of costs. We must make it clear that our intention,
in the first appeal, in reserving the costs to the retrial was that
they should abide the outcome of such a retrial. We can see no
good reason whatsoever for depriving the successful party of
these costs. The costs of all previous proceedings, both here
and below, will therefore abide the outcome of this appeal as
well.
(g) While a Tenant will be protected under the Act the
Landlord will equally receive the court’s protection if he
has in fact established a ground for opposition as provided
for under the Act
Virginia Tobacco Association of Zambia v. Medical Clinic Centre

Limited, Supreme Court Appeal No. 4 of 1990
Court delivered by NGULUBE DCJ, as he then was]
This is an appeal against a judgment of the High Court which

allowed a tenant’s application to renew the tenancy under the
Landlord and Tenant (Business Premises) Act, Cap 440 of the
Laws of Zambia. For convenience we shall refer to the appellant
as the landlord and the respondent as the tenant, which is what
they were in the transaction. The evidence disclosed that the
tenant occupied premises which they shared with the landlord
along Chachacha Road in Lusaka. The landlord issued a notice
to determine the tenancy and such notice was dated 13th August,
1987 in which the tenancy would determine on 29th February,
1988 and in which the landlord indicated that they would oppose
an application to the Court by the tenant for a new tenancy on
the grounds specified under section 11 (1)(g) of the Act, namely
that at the termination of the tenancy they intended to occupy
the premises for the purpose of a business to be carried on by
them therein. The Act requires that the tenant should make
application to the Court for a new tenancy not less than two and
not more than four months thereafter.
The application was, in fact made about a month and half
late and one of the arguments, both below and here concerned
the exercise of the Court’s discretion under section 10 (4) in
allowing a late application. We have given due consideration to
the argument advanced by the landlord in this court to the effect
that the learned trial judge ought not to have allowed a late
application because, according to the landlord the tenant had
not given an adequate explanation for the delay. In the view that
we take, since the decision in this case will rest on another
point, it is unnecessary for us to dwell on the submissions
concerning the delayed application save to point out, as we have
done in the past, that where an issue concerns the exercise of
judicial discretion by a trial court this court will not interfere

lightly with the exercise of such discretion. It is of course, not
correct as Mr Phiri, argued that the exercise of discretion cannot
be the subject of impeachment in this court. The correct position,
as already stated is that this court or indeed any appellate court
will not interfere with the exercise of discretion unless it is clearly
shown that the discretion was exercised wrongly and not
judicially.
The landlord had also advanced an argument based on the
alleged invalidity of the tenancy for want of registration under
the Lands and Deeds Registry Act. But at the hearing of the
case, Mr Wood has very properly indicated that the Landlord
abandons that line of argument. Indeed the argument could not
have gone very far since the policy of the Landlord and Tenant
(Business Premises) Act, together with that under the Rent Act
is clearly for the protection of tenants and defaulting landlords
are rarely entertained when they use their own default to try
and defeat the protection of the Act. There was another
argument on the, basis of our decision in William Jacks and
Company(Z) Ltd v. O’connor43 in which our predecessor court
discussed the essentials to the validity of any lease. Once again.
Mr Wood has very properly conceded that a discussion of the
essential validity of a lease with reference to such matters as
commencement and duration would be immaterial in the light of
the clear language of the Act under consideration which continues
the tenancy of business premises unless determined in
accordance with the provisions of the Act. There was another
subsidiary argument, which was entirely valid and conceded by
Mr Phiri, to the effect that, once a trial Judge has determined
that a tenant should be granted a new tenancy, it is wrong for
the judge, where the terms have not been agreed by the parties
to inflict upon them such terms without affording them the
opportunity in the first instance to go and agree or disagree such
terms in accordance with the provisions of sections 15 and 16
of the Act, in which event, should they not agree, there is then
always liberty to apply to the Court.
The major issue in this case, in our considered view, concerns
the following finding made by the learned trial Judge, and we
quote:
43
(1967) ZR 109.
on whether the applicant should have a new lease,
I find that there is nothing on evidence to show
that the respondent is desperately in need of extra
room for their tobacco and other business. I am
of the opinion that the two extra rooms offered by
the applicant will adequately enable them to meet
the demands of their added responsibility.
In order to appreciate the arguments surrounding this particular,

holding, it is necessary to recite very briefly what were the
surrounding facts. The landlord had intimated to the tenant that
they were now called upon to undertake a responsibility to the
tobacco farming community which previously used to be
undertaken by a Government agency. For that reason, the landlord
required more room to accommodate the added responsibility
and activity. It was for that reason that the landlord indicated
that they would oppose an application under paragraph (g).
The tenant in one of the affidavits in support of their own
case, made a proposal to the court that the landlord’s added
responsibilities could be conveniently accommodated if the tenant
surrendered two of the rooms occupied by them and comprised
in the tenancy which were to be released. The tenant further
contended in the affidavit that the landlord could undertake their
added activity elsewhere and were not in desperate need of the
rooms occupied by the tenant who would be greatly
inconvenienced to move out of the rooms from which they had
operated their clinic for a period in excess of seventeen years.
The learned trial judge, in dealing with this matter held as we
have already quoted. Mr Wood has argued that the court used a
wrong approach and the wrong test in determining whether or
not the landlord’s opposition ought to have been sustained. He
pointed out on the authority of our decision in Afro Butcheries
Limited v. Evees Limited44 and also in terms of the Act itself in
section 12 (1) that all the Landlord had to do was to satisfy the
Court that he had a genuine intention, not simply a colorable
one, to occupy the premises for a business to be carried on by
him. He submitted further that all that the landlord had to show
was that he had a firm and settled intention to do what he had
indicated to the tenant. These were entirely valid submissions
and we have no hesitation whatsoever in declining to support
the learned trial judge’s view that the Act requires any sort of
44
(1987) ZR 39.
desperation on the part of a landlord. We also do not agree that

the Act allows a solomonic type of judgment where a compromise
proposed by a tenant for the sharing of the premises could be
foisted upon the parties under a court-ordered new tenancy.
We are not without sympathy for the tenant who has occupied
the premises for a very long time indeed. However, it is undeniable
that the landlord had produced before the court sufficient
evidence to show that their stated intention was genuine and
that they had a need for the premises occupied by the tenant.
As a matter of fact, Mr Phiri had suggested that perhaps only
the use of the word ‘desperately’ could be criticised but that if
that word was left out, the quotation which we have already
alluded to would accurately reflect what the judge had in mind
and the fact that he had weighed all the facts and came to the
right conclusion namely, that the recognised need of the landlord
could be sufficiently catered for by the proposal to surrender
the two rooms which was made by the tenant. It is not without
some hesitation, in view of the fact that the tenant must obviously
now expect a certain amount of suffering, that we reject the
argument so forcefully put forward by Mr Phiri. The law is
clear and while a tenant will be protected, the landlord will equally
receive the Court’s protection if he has in fact established a
ground for opposition, as provided for in the Landlord and Tenant
(Business Premises) Act.
It follows from what we have been saying that we consider
that this appeal should be allowed in full. The decision of the
court below is quashed and there will be judgment entered for
the landlord on his successful opposition. Since the premises,
the subject of this litigation, are used for a business and having
regard to the fact that the tenant has had, effectively, a substantial
extention already on their occupancy of the premises we consider
that it would be just to stay execution of possession which we
order in favour of the landlord for a period of three months from
today. The costs, both here and below, will be for the landlord
and are to be taxed in default of agreement.
In certain instances a landlord may be motivated to issue
and serve a notice to quit on the tenant after some disagreement
on the question of an increase in rent. This was the allegation
made by the tenant in Kapembwa v. Mulla Brothers Ltd.45
The bottom line, it is submitted, is that the Court should be satisfied
whether or not the landlord has in fact established a ground for
45
opposition as provided for under the Act: for instance, by proving
that he intends or has a settled intention to occupy the premises
for a purpose of a business to be carried on by him therein. In
such a case, the landlord would manage to indirectly get rid of a
tenant who is refusing to agree to an increase in rent. The
Kapembwa case is excerpted hereunder.
Vincent Kapembwa v. Mulla Brothers Ltd, Supreme Court Appeal

No. 23 of 1999
For convenience we shall call the appellant ‘the tenant’ and the
respondent ‘the landlords.’
This is an appeal against the refusal by the High Court to
grant a new tenancy of business premises to the tenant under
the provisions of the Landlord and Tenant (Business Premises)
Act, Chapter 440 of the Laws of Zambia. The court below
found to the effect that the landlords had successfully opposed
the tenant’s application. The tenancy related to a shop on Stand
129 Freedom Way, Lusaka. There was affidavit evidence which
established that after some correspondence and some
disagreement over the question of an increase in the rent and
some other terms, the landlords wrote a letter to the tenant dated
31st January, 1983, in which they communicated their decision
to terminate the 1ease and to occupy the shop for the purpose
of running a business to be carried on by them. Subsequently,
the landlords served a notice to quit which specified that the
landlords would oppose the tenant’s application to the court on
the ground to which we have made reference, under the terms
of paragraph (g) of section 11 of the Act.
The tenant duly made application to the High Court and at
the hearing Counsel for the tenant indicated that he would rely
on his client’s affidavit. The affidavit alleged to the effect that
the landlords did not in fact require this small shop for a business
to be carried on by them; that they had six other bigger shops
along the same street while the tenant had no alternative
premises from which to run his grocery; and that the landlords
sought to repossess the premises only because the tenant had
been refusing to pay the increased rent. The landlords on the
other hand filed an affidavit in opposition in which it was explained
not only that the other shops referred to were already leased to
other tenants, but that though the tenant had indeed refused to
accept an increase in rent from K120 to K200 per month, the
landlords had formed the intention to operate their own business
of a snack shop and grocery which would greatly increase their
income from this small shop as opposed to the paltry rental
receivable from the tenant. The learned trial judge considered
the affidavit evidence and heard the submissions. He ruled that
the landlords had satisfied the law and dismissed the application.
On behalf of the tenant, Mr Mwansa filed two grounds of
appeal. The upshot of such grounds is that the tenant alleges
error on the part of the learned trial judge with regard to what
the landlords had to establish under the Act as well as on the
question of who bears the burden of proof in such an action.
Mr Mwansa has referred to our decision in Afro Butcheries
Limited v. Evees Limited,46 a case in which even Mr Naik
(though not called upon) has referred to in his written heads of
argument – in which we pointed out to the effect that it was the
intention of the Act that a tenant had to obtain a new tenancy
more or less as a matter of course unless the landlord satisfied
the court on his ground for opposing the application. In his
submission, Mr Mwansa makes the trite point that a landlord
must do a little bit more than just give notice to quit specifying
one of the grounds listed in the Act. However he also goes on
to argue that, in terms of Afro Butcheries v. Evees Limited, the
landlord in this case should have demonstrated to the court, by
producing his profit and loss accounts, the need to acquire
possession of this shop in order to show that he would otherwise
not have made enough money from his other premises. He has
argued that if a landlord has formed the intention to occupy the
premises for his own business only after he has had differences
with his tenant, the court should look at what the reasons were
which have motivated the landlord. It was his submission that
this the landlords failed to do and that in terms of our decision in
Afro Butcheries, the landlord had not satisfied the court that he
had a genuine intention. We must point out immediately that
Afro Butcheries does not suggest any of the propositions which
Mr Mwansa has advanced before us. The only issue which has
exercised our minds is the form that the hearing took in the
court below, namely that the court was content to rest on
affidavits and submissions. While it is generally preferable for
46
(1987) ZR 39.
contentious matters to be resolved by hearing evidence especially
if the question of credibility may be involved, we also accept
that the learned trial Judge in this case cannot be faulted for
taking the course which he did when the issues raised by the
parties, more especially by the tenant, were such that they were
not relevant to disproving the intention of the landlord. Since the
sincerity of the landlord’s intention to occupy the premises was
not put under serious challenge, we are satisfied that the learned
trial Judge did not err in any manner when he resolved as he
did. On the material which, was placed before him and in the
absence of any real dispute concerning the landlord’s intention,
we do not see that the learned trial judge can be faulted for
expressing satisfaction that the landlords had satisfied the statute
and so successfully opposed the tenant’s application. In so doing
he did not shift the burden of proof as Mr Mwansa has contended
in one of his submissions. In truth there are no grounds for us to
interfere with the judgment of the court below.
The appeal is dismissed with costs and, in keeping with our
observations in the Afro Butcheries Limited case, namely the
avoidance of multiplicity of actions once the parties are properly
before the court, we enter judgment for the landlords for
possession of the shop by ordering a stay of execution for three
months from the date hereof.
As the tenant may be entitled to compensation on termination
of his tenancy, in terms of section 19 of the Landlord and Tenant
(Business Premises) Act, we grant him liberty to apply to the
Deputy Registrar of the High Court for assessment of such
compensation, if any.
Section 11 (1)(f) of the Landlord and Tenant (Business
Premises) Act provides as a ground of opposition available to
the landlord that:
on the termination of the current tenancy the

landlord intends to demolish or reconstruct the
premises comprised in the holding or a substantial
part of those premises or to carry out substantial
work of construction on the holding or part thereof
and that he could not reasonably do so without
obtaining possession of the holding.
The question of ‘intention’ was discussed by the House of Lords

in Betty’s Cafes Ltd v. Phillips Furnishing Stores Ltd.47 The
47
[1959] AC 20.
case involved an identical ground (under the English 1954

Landlord and Tenant Act from which our Act is mainly based
on) to section 11 (1)(f) of the Landlord and Tenant (Business
Premises) Act the case is excerpted below.
Betty’s Cafes Ltd v. Phillips Furnishing Stores Ltd [1959] AC 20
Since 1925, the tenants had carried on their business in premises

held under a series of leases, none of, which granted a term,
exceeding eight years. In 1954 the landlords, a limited company
had purchased the reversion expectant on the tenants term with
a view to occupying the premises for their own business.
Because they had done so less than five years, before the
termination of the tenancy they were precluded by section 30
(2) from relying, on paragraph (g) of section 30 (l). On 28 June
1955, the tenants served a notice, under section 26 of the Act
asking for the grant of a new tenancy for a term of 14 years.
On August 15, 1955, the secretary of the landlord company gave
notice to the tenants that they would oppose the grant of a new
tenancy under section 30 (1), (f) stating: The grounds on which
we, shall oppose any application which you may make to the
court. . . are that. . . .we intend to reconstruct the premises. ..
At the time no resolution to that effect had been passed by the
board.. On April 16, 1956; the hearing of the application began
before Danckwerts, J. On April, 23, before it was completed,
the board of the company passed ,a resolution that in the event
of possession being obtained, a scheme prepared, in January
1955, should be carried out and that expenditure up to £20,000
on the works should be approved and that Counsel should be
authorised to give an undertaking to that effect. Danckwerts, J
held that the intention so expressed had the necessary qualities
of fixity and genuineness. It was not disputed that it had not
been proved that such an intention existed at the date of the
notice of opposition.
Held, (1) (Lord Keith of Avonholm dissenting), that the
intention established by the landlords was sufficient to negative
the grant of a new lease; the landlords proved the intention
required by section 30 (1) if they proved its, existence at the
date of the hearing.
Per Lord Denning. The Landlord must honestly and truthfully
state his ground in his notice and establish it as existing at the
time of, the hearing.
Viscount Simonds: My Lords, this appeal raises a question of
construction of certain sections of Part II of the Landlord and
Tenant Act, 1954, to which I will - refer as ‘the 1954 Act.’
Concretely, it is whether Danckwerts, J was right when the
matter first came before him, in ordering the respondents to
grant to the appellants a new tenancy of certain business
premises known as 42-44, Darley Street, in the city of Bradford,
for the term of 14 years from 14th June, 1956, at a rent of
£3,000 per annum and otherwise upon the terms of a lease dated
29th April, 1946, to which I will, refer later. The Court of Appeal
have by a majority (Birkett and Romez, L.J.J.,’ dissentiente Lord
Evershed, MR) held that he was wrong in doing so.
It is necessary to state briefly the relevant facts upon which
this question arises. The appellants and their predecessors in
title have since 1925 carried on the business of cafe proprietors
and retail confectioners on the greater part, and since 24th June,
1955, on the whole of the premises in question under a series of
leases, the last of which was dated 29th April, 1946, and was
for a term of eight years from 1st January, 1946, at a rent of
£1,400 per annum. On 23rd September, 1953, the Bradford
County Court made an order under the Leasehold Property
(Temporary Provisions) Act, 1954,for the grant of a new tenancy
of the premises to the appellants’ predecessor in title for a term
of 12 months from 1st January, 1954, at a rent of £2,000 per
annum and otherwise on the terms of the said lease. This tenancy
was from 1st January, 1955, continued by section 24 (1) of the
1954 Act and has since 17th February, 1955, been vested in the
appellants. In the meantime, the respondents had acquired the
long leasehold reversion of the premises at a price of £38,750,
the contract for purchase having been made on 25th August,
1953, and the purchase completed on 1st March, 1954. It was in
the view of the learned judge, which I see no reason to doubt,
fairly clear that they hoped to occupy this property for the
purposes of their furnishing business. It is also, I think, clear that
this idea was never formally given up by the board of directors
of the company, though the inconsistent idea of selling the
premises to the appellants was favoured by certain of the
directors, and was by them carried so far that the appellants,
felt a legitimate grievance at its abandonment. All this, however,
has become of no importance, for your Lordships have to
determine this appeal upon two findings of fact, (i) that it was
proved that on 23rd April, 1956, the respondents intended on the
termination of the current tenancy to carry out a substantial

work of construction on the premises and could not reasonably
do so without obtaining possession thereof; and (ii) that it was
not proved that they so intended, at any earlier date. The relevance
of these dates must now be explained.
Part II of the 1954 Act was designed (inter alia), to give a
greater degree of protection to, the tenants of business premises
than they formerly had. To effect this purpose it provided in the
first place that a tenancy to which it applied should continue
automatically under section 24 until one or other of several events
should happen, of which the relevant event for the purpose of
this case is that the tenant should, pursuant to section 26, make
a request for a new tenancy. That section provided that a tenant’s
request for a new tenancy might be made in the ,circumstances
therein described (which admittedly covered the present case),
and should be for a tenancy beginning with such date not more
than 12 or less than 6 months after the making of the request as
might be specified therein, with a proviso which I need not state.
It further provided that a tenant’s request for a new tenancy
should not have effect unless it was made by notice in the
prescribed form given to the landlord and set out the tenant’s
proposals as to the property to be comprised in the new tenancy,
as to the rent to be payable thereunder and as to the other terms
thereof. And by subsection (6) it provided as follows: ... within
two months of the making of a tenant’s request for a new tenancy
the landlord may give notice to the tenant that he will oppose an
application to the court for the grant of a new tenancy, and any
such notice shall state on which of the grounds mentioned in
section 30 of this Act the landlord will oppose the application.
Taking advantage of this section the appellants by notice in
the prescribed form to the respondents dated 28th June, 1955,
requested the grant of a new tenancy of the premises
commencing on 24th June, 1956, at a rent of £2,500 per annum
for a term of 14 years, the other terms being, except as therein
mentioned those of the existing tenancy.
On August 15, the respondents replied that they were not
willing to grant a new tenancy and, following precisely the
language of subsection (6) and of section 30 (1) (1), said the
grounds on which we shall oppose any application which you
may make to the court for the grant of a new tenancy of the
said property are that on the termination of the current tenancy
we intend to reconstruct the premises comprised in the holding
or a substantial part of those premises or to carry out substantial
work of construction on the holding or part thereof and that we
could not reasonably do so without obtaining possession of the
holding.
On 27th October, 1955, the appellants accordingly issued an
originating summons in the Chancery Division of the High Court
asking that the respondents might be ordered to grant them a
new tenancy in the terms of their notice. This summons, having
come before the master on certain affidavit evidence, was
adjourned to be heard in effect as a witness action by the judge.
It was heard with oral evidence before Danckwerts, J on 16th
April, 1956, and five further days, and on May 7 he gave judgment
in favour of the appellants and ordered the respondents to grant
them a new lease of the premises for 14 years from 24th June,
1956, at a rent of £3,000 per annum.
It is necessary now to remind your Lordships of what proved
to be the decisive event of 23th April, 1956. On that day at a
board meeting of the respondents, the hearing of the case before
the learned judge being nearly but not quite concluded, it was
resolved:
(1). That in the event of the company obtaining

possession of the premises from Betty’s Cafes Ltd.
on the termination of the last mentioned company’s
current tenancy thereof, the works detailed in Mr.
Ovenden’s specification dated January, 1955, and
plan numbered 45/2 be forthwith carried out and
that expenditure of up to £20,000 upon such works
be approved. (2) That counsel appearing for the
company in the application by Betty’s Cafes Ltd,
now proceeding ‘in the Chancery Division be
authorized to give an undertaking’ either to the court
or to Betty’s Cafes Ltd, that the above mentioned
works will be carried out as soon as is practicable
in the event of possession being so obtained.
I have said that the passing of this resolution was a decisive

event. But it was not yet to be decisive. For Danckwerts, J,
while holding that the works in question were a substantial work
of construction within the meaning of section 30 (1) of the Act,
and that the respondents could not reasonably carry them out,
without obtaining possession of the premises, held that upon the
true construction of the Act the respondents must prove that

already at the date when they gave their notice of opposition,
namely, on 15th August, 1955, they had a firm and settled intention
to carry out these works at the end of the current tenancy. He
held (and it has not since been disputed) that they had not proved
such an intention at that date: he therefore regarded the resolution
of 23th April, 1956, as irrelevant.
Here, then, my Lords, was the issue upon which the Court
of Appeal, though divided among themselves, overruled the
learned judge. Was it necessary to prove that the requisite
intention was held at the date of the notice of opposition, or was
it sufficient to prove that it was held at the date of the hearing?
Taking the latter view, the Court of Appeal, not having had
the advantage of the learned Judge’s opinion whether the
resolution of April 23 had the requisite quality of a fixed and
settled intention, remitted the case to him for his determination
of that question. He decided it in favour of the respondents and,
accordingly, dismissed the appellants’ application for a new lease:
In effect, therefore, this appeal raises the single question whether
the Court of Appeal were right in holding that the respondents
proved the intention required by section 30 (1) of the Act if they
proved its existence at the date of the hearing. If your Lordships
thought they were not right, then the further question would
arise whether the term of the new lease should, if granted be, as
Danckwerts, J determined, 14 years or, as the Court of Appeal
unanimously thought, five years only. But this question does not
arise. For the determination of this short question of construction
I must refer to certain other sections of the Act.
I have already pointed out that under section 26 (6) the
landlord may give notice to the tenant that he will oppose an
application to the court for the grant of a new tenancy, and any
such notice shall state on which of the grounds mentioned in
section 30 of this Act the landlord will oppose the application.
I have also, with sufficient precision, referred to the ground
namely, that contained in section 30 (1) (I), upon which the
respondents gave notice that they would oppose, and in fact
opposed, the appellants’ application in this case. But, in deference
to the argument addressed to us, I set out the grounds mentioned
in section 30 (1), (a), (b), (c), (d) and (g), ignoring (e) which
neither side found helpful or wholly intelligible. I shall also refer
to section 30 (2) and to section 31 (1) as throwing a mild light on
the construction. Section 30 (1) is as follows:
The grounds on which a landlord may oppose an
application under subsection (1) of section 24 of
this Act … under subsection (6) of section 26
thereof. . .-(a) where under the current tenancy
the tenant has any obligations as respects the repair
and maintenance of the holding, that the tenant ought
not to be granted a new tenancy in view of the
state of repair of the holding, being a state resulting
from the tenant’s failure to comply with the said
obligations; (b) that the tenant ought not to be
granted a new tenancy in view of his persistent
delay in paying rent which has become due; (c)
that the tenant ought not to be granted a new tenancy
in view of other substantial breaches by him of his
obligations, under the current tenancy, or for any
other reason connected with the tenant’s use or
management of the holding; (d) that the landlord
has, offered and is willing to provide or secure the
provision of alternative accommodation for the
tenant, that the terms on which the alternative
accommodation is available are reasonable having
regard to the terms of the current tenancy and to
all other relevant circumstances, and that the
accommodation and the time at .which it will be
available are suitable for the tenant’s, requirements
(including the requirement to preserve goodwill)
having regard to the nature and class of his business
and to the situation and extent of, and facilities
afforded by, the holding… (g) subject as herein-
after provided, that on the termination of the current
tenancy the landlord intends to occupy the holding
for the purposes, or partly for the purposes, of a
business to be carried on by him therein, or as his
residence.
Subsection (2) of section 30 precluded the
respondents from taking advantage of ground (g),
for it made that ground available only to a landlord
who had acquired the reversion at least five years
before the termination of the current tenancy.
Section 31 (1) provided that if a landlord opposes
an application under subsection (1) of section 24
on grounds on which he is entitled to oppose under
section 30, and establishes any of those grounds to
the satisfaction of the court, the court shall not make
an order for the grant of a new tenancy.
My Lords, as a preliminary to determining the date when the

requisite intention must be proved to have been formed, there
was much discussion upon the meaning of the word ‘intends’ in
section 30 (1)(f). It, might be regarded as some-what academic
in this case: for it is conceded that, whatever the meaning of the
word, an intention had not been formed at the date of notice of
opposition but had been formed on 23rd April, 1956. But the
question has this degree of relevance, that the greater the fixity
of intention and the less the mental reservation, the greater the
difficulty in supposing that the landlord is to form that intention
within two months of receiving the tenant’s request or forever
hold his peace. In this context your Lordships have the advantage
of a judgment delivered by (Lord Asquith, L J), than whom there
have been few greater masters of the English language in judicial
interpretation or exposition, in Cunliffe v. Goodman,48 I will
content myself with a single short passage, though much more
might be usefully cited: ‘An intention,’ said the learned Lord
Justice, to my mind connotes a state of affairs which the
party intending - I will call him X-does more than merely
contemplate: it connotes a state of affairs which, on the
contrary, he decides, so far as in him lies, to bring about,
and which, in point of possibility, he has a reasonable
prospect of being able to bring about, by his own act of
volition.’ I do not think that anything is to be gained by trying to
elaborate these words, but I must fairly add that I do not at all
dissent from the explanation of them which the learned Master
of the Rolls has given in this case. It is a question of fact what
intention a man has at a given time, difficult, it may be, to
ascertain, but still a question of fact, and I think that a jury
directed in such words as these could come to a fair conclusion.
Having said so much, I doubt whether I have got much help on
my way to a solution of the question of construction. But perhaps
it may be said that it would, in many cases, place an unfair
burden on the landlord if within a short space of two months he
had to attain the fixity of intention which I have indicated. Content
perhaps to await the time when he can resume possession under
ground (g), he is suddenly faced with an application compelling
him to form an intention, which can only be formed after a
consideration of a number of factors not easily ponderable. If I
felt any real difficulty in construction, I should I think, find in
this consideration an impulse to regard the date of hearing as
48
[1950] 2 KB 237.
the relevant and only relevant date for the ascertainment of
intention.
Equally from the point of view of the tenant it seems essential
that the court should find the intention subsisting at the date of
the hearing. As I listened to the argument for the appellants and
studied their formal case, it appeared to me that they regarded
the date of notice of opposition as the only relevant date. But I
have not been able to understand what advantage the tenants
could gain from the fact of the landlords’ intention at that date
or from the proof of it, if at a later stage it had been abandoned.
Upon this part of the case I respectfully adopt the reasoning of
Romer, LJ upon which I cannot hope to improve. I return, then,
to the short question of construction. Under section 26 (6) a
landlord giving notice that he will oppose an application must
state in his notice on which of the grounds mentioned in section
30 he will oppose the application,- This is ‘the language of futurity.
The landlord will oppose the application and he will oppose it
on such and such a ground. If the matter rested there, I should
not find it possible to regard the ground of opposition as referring
to anything but a state of affairs existing at the date of the hearing
when its validity could be tested. It might, no doubt, be relevant
for the purpose of testing its validity to know something of the
precedent state of affairs that would depend on the nature of
the ground of opposition. But in regard to ground (f), which we
are immediately considering, nothing more is required of the
landlord than that he should state that he will oppose the
application on the ground that on the termination of the current
tenancy he intends to do certain work and so on. All is still in
the future and, except for the purpose of challenging his bona
fides, which is not here in question, nothing that has happened in
the past has any relevance. At the hearing he will oppose and
prove his avowed intention. This seems to me, with all deference
to those who take a different view, to be the plain English of
section 26 (6) and section 30 (1)(f). I have already pointed out
that it appears to accord also with the general purpose of the
Act. It harmonises also with the language of section 31 (1) which
contemplates the landlord satisfying the court upon any of the
grounds upon which he is entitled to oppose the application. But
it has been urged (and for that reason I have set out grounds (a)
to (d) and (g)) that, whatever might be said if ground (f)stood
alone, a different construction is imposed by a consideration of
the other grounds of opposition. From this argument I entirely
dissent. In the first place I see no reason different grounds of

opposition should not relate to different periods of time. But, in
any case, the argument, if bona fides is assumed an unreal one.
It is not to be supposed that a landlord will base his opposition
under ground (a), that is, the state of repair of the holding resulting
from the tenant’s failure to comply with his obligations, if in fact
the state of repair at that date gives him nothing to complain of.
He will state that he will rely on ground (a) if and only if at the
date of notice it gives him solid support. At the hearing the judge,
whose power to grant a new tenancy is discretionary where
this ground of opposition is pleaded, will necessarily take into
consideration the state of repair or disrepair, not only at the date
of notice, but also at the date of hearing. This appears to me to
throw no light upon the meaning of section 30 (1)(f). I would
make the same observations mutatis mutandis upon grounds (b)
and (c). Perhaps a brighter light is thrown by (d), which opens
with the words ‘that the landlord has offered and is willing.’ etc.
Here the perfect and the present tense are used. Leave out the
perfect and look, only at the present tense. ‘The landlord is
willing.’ It would be a hardship and worse on the tenant, if the
relevant date were any other than that of the hearing it is to his
advantage that the opportunity of accepting an offer of alternative
accommodation should be open to the last moment, and it is
inconceivable that the landlord should at the hearing be permitted
to say that, though no longer willing, he had been willing at an
earlier date, and therefore could validly oppose the application.
Nor would it be reasonable to reduce the time within which the
landlord should have the opportunity of finding and offering
alternative accommodation. If the tenant complains that he has
had too little time to consider its suitability, his grievance can be
met by an appropriate adjournment. In ground (d), therefore, I
find support, if it be needed, for the view that the word ‘intends’
in ground (f) means ‘intends at the date of the hearing.’
Learned counsel for the appellants argued in the alternative
that the relevant intention must be proved to exist at the moment
when the landlord states in the proceedings that he opposes the
tenant’s application on ground (f), that is, presumably, when the
proceedings are commenced by way of originating summons in
the High Court, in the affidavit filed by him or on his behalf in
opposition. But it did not appear to be that there was any reason
to select this moment of time rather than any other in the course
of the hearing before judgment except that fortuitously it would
in the present case defeat the respondents, They also relied on
the analogous provisions of Part I of the Act: so also did counsel
for the respondents. I intend no disrespect to their careful
arguments if I say that they cannot affect the conclusion that I
reach upon a consideration of the relevant sections of Part ll.
My Lords, in the courts below it was proper to consider at
length the cases in which the quality of the requisite intention
had been considered; and also those cases in which there had
been obita dicta as to the relevant date. As to the former, I
hope I have said enough in accepting the decision of Lord Asquith
in Cunliffe v. Goodman49 and not dissenting from the elaboration
or explanation of it by the present Master of the Rolls. As to the
latter the point having been fully argued in the present case but
not in those containing the dicta to which I have referred; Your
Lordships will not, l believe, think I should be justified in occupying
time in discussing them.
It remains to consider an alternative argument on behalf of
the appellants which was not, I think, dealt with by the Court of
Appeal. It was to the effect that upon the true construction of
section 30 a reconstruction or other work such as is specified in
paragraph (f) is not intended within the meaning of, and does
not fall within, the said paragraph, if the landlord’s intention to
carry out the work is conditional upon his obtaining possession
of the, premises for his own occupation, and the sole object of
the work is to adapt the premises for the purposes of the business
which he desires to carry on therein. It is clear that no such
limitation of the scope of paragraph (f) is to be found in the
paragraph itself.
But it is said to be implicit in it, when read with paragraph
(g). But there is, I think, no force in this argument. Paragraph
(g) is available to the landlord whether or not he intends to carry
out a work of demolition or reconstruction. There is no reason
to deny to him the use of paragraph (f) if he can satisfy its
conditions. I do not ignore that reliance was placed on a decision
of the Privy Council in McKenna v. Porter Motors Ltd, but I
am unable to get any help from a construction placed on another
statute unless it establishes some principle or that statute is so
closely connected with the statute under consideration that the
legislature must be deemed to have legislated with a knowledge
of that construction. The decision in McKenna v. Porter Motors
Ltd satisfied neither condition. In the result, the appeal must be
49
Ibid.
dismissed with costs. That means that the application of the

appellants for the grant of a new lease fails and must be
dismissed.
Summary of Chapter Sixteen
This Chapter has examined and considered the law for the protection of
tenants of Business Premises in Zambia. The Landlord and Tenant
(Business Premises) Act has its textual roots in the English Landlord
and Tenant Act of 1954. The primary objectives of the Landlord and
Tenant (Business Premises) Act are to provide security of tenure for
tenants occupying property for business, professional and certain other
purposes and to enable such tenants to obtain new tenancies in certain
cases. Security of tenure is secured under section 4 of the Act which
requires that a tenancy to which the Act applies shall not come to an end
unless terminated in accordance with the provisions of the Act. An
ordinary notice to quit e.g., by letter given by the landlord has thus no
effect. Under the provisions of section 11, which provides for grounds
of opposition, the court is bound to grant a new tenancy unless the landlord
establishes one or more of the Statutory grounds of opposition. While a
tenant will be protected under the provisions of the Act, the landlord will
equally receive the courts protection if he has in fact established a ground
for opposition as provided for under the Act. The protection that the
tenant enjoys under the Act has been illustrated and/or exemplified by
the cases excerpted under this chapter.
613
Chapter Seventeen
REGISTRATION OF INTERESTS IN LAND:

The Lands and Deeds Registry Act
17.0 Introduction
Grants of land and dealings in land are effected by means of

documents which are drawn in compliance with the formalities
required by English law as applied in Zambia. The purpose of
the Lands and Deeds Registry Act is to secure publicity for
documents relating to land.
The Lands and Deeds Registry Ordinance, which at
independence became an Act,1 first came into operation in
Northern Rhodesia on 1 November 1914. The Ordinance was
amended from time to time with the major amendments being
effected on 1 May 1944.
The salient provisions of the Act are discussed below.
17.1 Objectives of the Lands and Deeds Registry Act
From the preamble, the objectives of the Lands and Deeds

Registry Act are to:
(a) provide for the registration of documents;
(b) provide for the issue of provisional certificates of title
and certificates of title;
(c) provide for the transfer and transmission of registered
land, and
(d) provide for the matters incidental to or connected with
the foregoing.
17.2 Establishment of Registry of Deeds
Section 3 (1) of the Act provides for the establishment and

constitution of the Lands and Deeds Registry. The section
provides that for the registration of documents required or
permitted to be registered under Part II of the Act or by any
law, there shall be an office styled the registry of deeds in Lusaka
and that the Minister may by Gazette notice direct that there
1
shall be a district registry in such place as shall be in such notice

mentioned for any district to be thereby defined. There is
currently a district registry in Ndola.
17.3 Documents required to be registered and times within

which registration must be effected
Section 4 of the Act provides for documents that require to be

registered. The section provides that:
(1) Every document purporting to grant, convey

or transfer land or any interest in land, or to
be a lease or agreement for lease or permit
of occupation of land for a longer term than
one year, or to create any charge upon land,
whether by way of mortgage or otherwise,
or which evidences the satisfaction of any
mortgage or charge, and all bills of sale of
personal property whereof the grantor
remains in apparent possession, unless
already registered pursuant to the provisions
of, ‘The North-Eastern Rhodesia Lands and
Deeds Registration Regulations, 1905’ or
‘The North-Western Rhodesia Lands and
Deeds Registry Proclamation, 1910’, must
be registered within the times hereinafter
specified in the Registry or in a District
Registry if eligible for registration in such
District Registry.
This Section was construed in the case of William Jacks and

Company (Z) Limited v. O’Connor (in his capacity as
Registrar of Lands and Deeds) and Construction and
Investment Holdings Limited Intervening.2
Section 5 provides for times within which registration must
be effected. The section provides that:
(1) All bills of sale must be registered within

three months of the execution of the same.
(2) All other documents, except probate of a
will, required to be registered as aforesaid
shall be registered-
2
(1967) ZR 109 – The case is excerpted under section 17.15 dealing with case law.
REGISTRATION OF INTERESTS IN LAND: THE LANDS AND DEEDS REGISTRY ACT 615
(a) in the case of a document executed at
the place where it is registered, within
thirty days from its date;
(b) in the case of a document executed
elsewhere in Zambia, within ninety
days from its date;
(c) in the case of a document executed
out of Zambia, within one year from
its date.
(3) Probate of a will affecting land or any
interest in land shall be registered within
twelve months of the grant thereof or the
sealing thereof under the provisions of the
Probates (Resealing) Act, as the case may
be.
17.4 Documents to be Void for want of Registration
Section 6 provides the effect of failure to register. The section

provides that:
Any document required to be registered as

specified in the last preceding section shall
be null and void
Provided that-
(i) the Court may extend the time within which
such document must be registered, or
authorise its registration after the expiration
of such period on such terms as to costs
and otherwise as it shall think fit, if satisfied
that the failure to register was unavoidable,
or that there are any special circumstances
which afford ground for giving relief from
the results of such failure, and that no
injustice will be caused by allowing
registration;
(ii) the probate of a will required to be registered
as aforesaid, and not registered within the
time specified in the last preceding section,
shall be null and void so far only as such will
affects land or any interest in land.
In Patel and Another v. Daud Ismail,3 an agreement for a

lease which contained an option to purchase was not registered
as required by section 4 of the Lands and Deeds Registry
Ordinance (now section 4 of the Lands and Deeds Registry
Act). Chief Justice Sir Herbert Cox in the High Court for
Northern Rhodesia allowed registration out of time although three
years had elapsed. The special circumstances which the Court
found were that:
(a) The applicants had taken reasonable steps to ensure
that their rights under the agreement were preserved.
(b) The respondent had been asked to execute a formal
lease and had refused.
(c) It would be inequitable not to grant the application.
In Sundi v. Ravalia,4 Woodman, J sitting in the High Court of
Northern Rhodesia held that the phrase ‘null and void’ in section
6 of the Lands and Deeds Ordinance (now Lands and Deeds
Registry Act) means ‘of no effect whatsoever.’ In Krige and
Another v. Christian Council of Zambia,5 it was held by the
Supreme Court, following the decision in the Sundi case that,
the effect of non-registration was that the agreement was void
for all purposes whatsoever.
In Ward v. Casale and Burney,6 Robinson, J sitting in the
High Court for Northern Rhodesia held that there was no
difference between the expression ‘null and void’ as used in the
Lands and Deeds Ordinance and the expression ‘void at law,’
as used in the Real Property Act, 1845. In other words a
document required to be registered under section 4, but not
registered would only be ‘void at law’ but valid in equity. Of the
two decisions, the decision of Mr Justice Woodman in Sundi v.
Ravalia appears to be a sound one in the context of sections 4
and 6 of the Lands and Deeds Registry Act.
17.5 Optional Registration of Documents not Required to be

Registered, and Registers to be kept
In terms of section 8, any document affecting land which is not

required to be registered pursuant to the provisions of subsection
1 of section 4 may nevertheless be registered in a manner as
3
LRNR (1949 - 54), at p. 563.
4
LRNR (1949 - 54), at p. 345. The case is excerpted under chapter 10 dealing with the doctrine in Walsh v.
Lonsdale.
5
(1975) ZR 152.
6
[1949 - 1954] NRLR p. 765. The case is referred to under chapter 10.
the Registrar may direct. Section 9 of the Act provides for the
registers to be kept. The section provides that:
The following registers shall be kept:

(a) A register of documents relating to land not
subject to customary title, other than
documents referred to in paragraph (b),
called the Lands Register;
(b) A register of documents relating to
common leasehold schemes, called the
Common Leaseholds Register;
(c) A register of other documents required or
permitted to be registered under this Act,
called the Miscellaneous Register.
In terms of the miscellaneous register and the content thereof,

section 10 of the Act provides that any deed or instrument
declaring a trust which it is desired to register and any document,
other than relating to land, either required by any law to be
registered and in respect of which no special registry office is
indicated or which it is desirable and proper to register, shall be
registered in the Miscellaneous register.
17.6 Correction of Errors or Omissions in Register
Section 11 of the Act provides for correction of errors or

omissions in the registers. The section provides that:
(1) Where any person alleges that any error or

omission has been made in a Register or that
any entry or omission therein has been made
or procured by fraud or mistake, the
Registrar shall, if he shall consider such
allegation satisfactorily proved, correct such
error, omission or entry as aforesaid.
17.7 Registration Not to Cure Defect
Section 21 of the Act provides that the registration of a document

shall not cure any defect in any instrument registered or confer
upon it effect or validity. In other words, an instrument registered
stands or falls on its own merits.
17.8 Certificate of Title required before Registration of an

Interest in Land
Section 29 provides that a certificate of title shall be required

before any registration of any document purporting to grant,
convey or transfer land or any interest in land. The section
provides that:
As from the 1st May, 1944, no document

purporting to grant, convey or transfer land or
any interest in land, or to be a State Lease or
agreement for a State Lease, or to be a lease or
agreement for a lease for a term of not less than
fourteen years, or to create any charge upon land,
whether by way of mortgage or otherwise, shall
be registered under the provisions of Part II
unless, prior to such registration, a Certificate of
Title or a Provisional Certificate in respect of
the land comprised in such document has been
issued to the person or persons entitled thereto.
17.9 Effect of Issue of a Provisional Certificate of Title
Section 32 provides the effect of issue of a provisional Certificate

of Title. The section provides that:
The issue of a Provisional Certificate shall confer

upon the Registered Proprietor of the land
comprised in such Certificate all the rights,
benefits and privileges under Parts III to VII of
a Registered Proprietor holding a Certificate of
Title except that the Court may, at any time upon
good cause shown at the suit of any person who
claims that he has a better title, cancel or amend
a Provisional Certificate and in that event may
order the rectification of the Register accordingly.
This section was discussed in the case of White v. Ronald

Westerman and Others.7
As to the effect of issue of Certificate of Title, section 33 of
the Act provides that:
7
(1983) ZR 135. The case is excerpted under section 17.15 dealing with case law.
A Certificate of Title shall be conclusive as
from the date of its issue and upon and after
the issue thereof, notwithstanding the
existence in any other person of any estate
or interest, whether derived by grant from
the President or otherwise, which but for
Parts III to VII might be held to be
paramount or to have priority; the
Registered Proprietor of the land comprised
in such Certificate shall, except in case of
fraud, hold the same subject only to such
encumbrances, liens, estates or interests as
may be shown by such Certificate of Title
and any encumbrances, liens, estates or
interests created after the issue of such
Certificate as may be notified on the folium
of the Register relating to such land but
absolutely free from all other
encumbrances, liens, estates or interests
whatsoever:
(a) Except the estate or interest of a proprietor
claiming the same land under a current prior
Certificate of Title issued under the
provisions of Parts III to VII; and
(b) Except so far as regards the omission or
misdescription of any right of way or other
easement created in or existing upon any
land; and
(c) Except so far as regards any portion of land
that may be erroneously included in the
Certificate of Title, evidencing the title of
such Registered Proprietor by wrong
description of parcels or of boundaries.
This section was construed in Chilufya v. Kangunda.8
17.10 Restriction on Ejectment After Issue of Certificate of

Title and Protection Against Adverse Possession
Section 34 provides for restriction on ejectment after issue of

Certificate of Title. The section provides that:
8
(1999) ZR 166 - The case is excerpted under section 17.14 dealing with case law.
(1) No action for possession, or other action

for the recovery of any land, shall lie or be
sustained against the Registered Proprietor
holding a Certificate of Title for the estate
or interest in respect to which he is
registered, except in any of the following
cases, that is to say:
(a) the case of a mortgage as against a
mortgagor in default;
(b) the case of the President as against
the holder of a State Lease in default;
(c) the case of a person deprived of any
land by fraud, as against the person
registered as proprietor of such land
through fraud, or against a person
deriving otherwise than as a transferee
bona fide for value from or through
a person so registered through fraud;
(d) the case of a person deprived of or
claiming any land included in any
Certificate of Title of other land by
misdescription of such other land, or
of its boundaries, as against the
Registered Proprietor of such other
land, not being a transferee, or
deriving from or through a transferee,
thereof bona fide for value;
(e) the case of a Registered Proprietor
claiming under a Certificate of Title
prior in date in any case in which two
or more Certificates of Title have
been issued under the provisions of
Parts III to VII in respect to the same
land.
Section 35 provides protection against adverse possession. The

After land has become the subject of a Certificate

of Title, no title thereto, or to any right, privilege,
or easement in, upon or over the same, shall be
acquired by possession or user adversely to or
in derogation of the title of the Registered
Proprietor.
This section is discussed in the cases of Lumanyenda and

Another v. Chief Chamuka and Others.9
17.11 Certificate to be evidence of Proprietorship
Section 54 of the Act provides that a certificate of title shall be

evidence of proprietorship. The section provides that:
Every Provisional Certificate and every

Certificate of Title, duly authenticated under the
hand and seal of the Registrar, shall be received
in all courts of law and equity as evidence of the
particulars therein set forth or endorsed thereon,
and of their being entered in the Register, and
shall, unless the contrary is proved by the
production of the Register or a copy thereof
certified under the hand and seal of the Registrar,
or unless the rectification of a Provisional
Certificate is ordered by the Court, be conclusive
evidence that the person named in such
Provisional Certificate or Certificate of Title, or
in any entry thereon, as seized of or as taking
estate or interest in the land therein described is
seized or possessed of such land for the estate
or interest therein specified as from the date of
such Certificate or as from the date from which
the same is expressed to take effect, and that
such Certificate has been duly issued.
This section was construed in the case of Chilufya v.

Kangunda. 10
17.12 Caveats
Part VI of the Act (sections 76 - 83) deals with caveats. Section

76 stipulates as to who is entitled to place or lodge a caveat.
9
(1988/89) ZR 194. The case is excerpted under section 17.14 dealing with case law.
10
Supra note 6.
Any person-
(a) claiming to be entitled to or to be beneficially

interested in any land or any estate or
interest therein by virtue of any unregistered
agreement or other instrument or
transmission, or of any trust expressed or
implied, or otherwise howsoever; or
(b) transferring any estate or interest in land
to any other person to be held in trust; or
(c) being an intending purchaser or mortgagee
of any land; may at any time lodge with the
Registrar a caveat in Form 8 in the
Schedule.
This section was construed in the case of Construction and

Investment Holding Ltd v. William Jacks and Co. (Z) Ltd11,
and Lenton Holdings Limited v. Moyo.12
In terms of section 77 of the Act, the caveat is required to be
signed by the caveator or by his attorney or agent and shall
state with sufficient certainty the nature of the estate or interest
claimed by the caveator with such other evidence as may be
required. Section 77 of the Act was construed in the case of
Lenton Holdings Limited v. Airforce Moyo.13
Section 79 of the Act provides for the effect of a caveat.

The Section provides that:
So long as a caveat in Form 8 remains in force,

the Registrar shall not make any entry on the
Register having the effect of charging or
transferring or otherwise affecting the estate or
interest protected by such caveat:-
Provided that nothing herein shall prevent the
completion of the registration of an instrument
which has been accepted for registration before
the receipt of the caveat.
11
12
13
Ibid.
This section was discussed in the cases Magic Carpet Travel
and Tours Ltd v. Zambia National Commercial Bank Limited14
and Construction and Investment Holdings v. William Jacks
and Company (Z) Limited.15
Section 81 provides for the procedure for removal of a
caveat. The section provides that:
(1) Such Registered Proprietor or other

interested person may, if he thinks fit,
summon the caveator, or the person on
whose behalf such caveat has been lodged,
to attend before the Court or a Judge
thereof to show cause why such caveat
should not be removed.
(2) Such Court or Judge, upon proof that such
person has been summoned, may make
such order in the premises, either ex parte
or otherwise, as to such Court or Judge
seems meet.
In terms of section 82, a person entering a caveat without

reasonable cause can be liable for damages. The section provides
that:
(1) Any person lodging any caveat without

reasonable cause shall be liable to make to
any person who may have sustained damage
thereby such compensation as may be just.
(2) Such compensation shall be recoverable in
an action at law by the person who has
sustained damage from the person who
lodged the caveat.
This section was construed in Construction Holding Limited

v. William Jacks and Company (Z) Limited.16
Section 83 provides that a caveat may be withdrawn by the
caveator or by his attorney or agent under written authority and
either as to the whole or any part of the land affected, or the
consent of the caveator may be given for the registration of any
particular dealing expressed to be made subject to the rights of
the caveator.
14
15
(1972) ZR 66.
16
Ibid.
17.13 Appeals to Court from Decisions of the Registrar
Section 87 provides for appeal to court from decisions of the

Registrar. The section provides that:
If the Registrar refuses to perform any act or

duty which he is required or empowered by this
Act to perform, or if a Registered Proprietor or
other interested person is dissatisfied with the
direction or decision of the Registrar in respect
of any application, claim, matter or thing under
this Act, the person deeming himself aggrieved
may appeal to the Court.
This section was costrued in the case of New Plast Industries

v. The Commissioner of Lands and Another.17
17.14 Case Law
(a) Every Document purporting to grant, convey or transfer land

or any interest in land or to be a lease or agreement for a
lease or permit of occupation of land for a longer term than
one year must be registered
WILLIAM JACKS AND COMPANY (Z) LIMITED v. O’CONNOR

(in his capacity as Registrar of Lands and Deeds)
CONSTRUCTION AND INVESTMENT HOLDINGS LIMITED
intervening (1967) ZR 109
[The facts of the case appear from the Judgment of the Court of
Appeal]
DOYLE, AG. CJ: This is an appeal against an order made by

Pickett, J, in relation to an application to extend the time for the
registration as an agreement for lease, under the provisions of
section 6 of the Lands and Deeds Registry Ordinance (Cap 84)
(which I will subsequently refer to as ‘the Ordinance’), of a
document which was as follows:
17
The case is excerpted under section 17.14 dealing with case law.
William Jacks & Company (Zambia) Limited
Livingstone Road,
LUSAKA. 10
29th December, 1966.
Pan African Construction,
P.O. Box 2197,
LUSAKA,
Zambia.
ATTENTION: MR FRANCISCO
Dear Sir,
This is to confirm the Francisco Powys conversation of the
28th instant in which it was agreed that this Company would
lease stand 2397 Stockton Street and the proposed buildings
as shown. The following points we agreed in principle
(1) The Lease shall be for five years.

(2) The rental shall be £390 (Three Hundred and Ninety
Pounds) per Mensum (sic).
(3) The first two years rental shall be paid in advance
thereafter shall be paid monthly in advance.
(4) The premises may be sublet to suitable persons.
(5) The proposed building will be available in April - May
1967.
This letter is presented in duplicate, kindly sign the copy in

signification of your agreement.
Yours faithfully,
For and on behalf of
WILLIAM JACKS & COMPANY (ZAMBIA) LTD.

(Sgnd.) J. POWYS
J DMH MANAGER
(Sgnd.) H.C. KINGSLAND
for PAN AFRICAN CONSTRUCTION
The relevant parts of section 6 are as follows:
6. Any document required to be registered as

specified in the last preceding section shall be
null and void provided however that the Court
may extend the time within which such document
must be registered or authorise its registration
after the expiration of such period on such terms
as to costs and otherwise as it shall think fit if
satisfied that the failure to register was
unavoidable or that there are any special
circumstances which afford ground for giving
relief from the results of such failure and that no
injustice will be caused by allowing registration:
The order of Pickett, J, adjourned the matter sine die for the
issue to be decided whether there was in existence an agreement
for lease. He held that unless this issue was first decided there
might be injustice to the proposed landlords.
Section 4 (1) of the Ordinance, so far as is relevant, is as
follows:
4(1). Every document purporting . . . to be an

agreement for lease . . . must be registered within
the times hereinafter specified in the Registry.
Section 7 of the Ordinance provides for priority of documents

by reference to the date of registration and section 21 provides
that registration does not cure any defect in any instrument
registered or confer upon it any effect or validity other than that
provided by the Ordinance.
In a sense, therefore, the Ordinance is, as has been argued
by the appellant, mainly a matter of record. But it is not every
document that can be registered. Section 14 of the Ordinance
requires the Registrar, before registering a document, to satisfy
himself that it is an instrument to which the Ordinance applies.
The Ordinance applies not only to a document which is an
agreement for lease but also to a document which purports to
be an agreement for lease.
The meaning of the word ‘purport’ has been dealt with in the
case of In re Broad,18 [which related to a will which on its face
18
[1901]2 Ch. 86.
was validly executed. It appeared from subsequent evidence
that the witnesses had neither known that they were witnessing
the signature of the deceased nor that the document was a will.
The will was not admitted to probate. The document was for
other purposes held to be a document purporting to be a will. In
R v. Keith,19 which related to the offence of engraving a note
purporting to be a bank note, Coleridge, J, said: ‘. . . An instrument
purports to be that which on the face of the instrument it more
or less accurately resembles.’
It seems to me that the intention of the legislature in using
the word ‘purporting’ in section 4 of the Ordinance was to relieve
the Registrar of the great burden of ascertaining what in fact
was the true nature of any document presented to him. Provided
on its face it appears to him more or less accurately to resemble
a valid document which required registration, he does not have
to go further.
I am of the opinion, therefore, that Pickett, J, erred in principle
when he held, in effect, that a requisite to determining the question
of extension of time was the determination whether the document
was in fact an agreement for lease. By so doing he gave no
effect to the use of the word ‘purporting’ in section 4 of the
Ordinance. He should have determined the question whether
the document purported to be an agreement for lease.
This court has been asked to grant the extension. It may be
that as between the parties this document was intended to be an
agreement for lease and that, in that respect, it purported to be
an agreement for lease; but it is the Registrar who must be
satisfied, and the question is whether the document would purport
to be an agreement for lease to him. I confess that this question
of fact has given me considerable difficulty. However, I have
come to the conclusion, with considerable hesitation, that the
patent invalidity by reason of the lack of a commencement date
took away from the document the necessary standard of
resemblance which would make it purport to be an agreement
for lease.
My hesitation is to a considerable extent relieved by the fact
that it seems to me that, although as the point has not been
argued I will refrain from making an actual finding, the provisions
of section 12 of the Ordinance would have precluded the
registration of this document.
In my view therefore an extension of time should not be
granted in this case as the document does not come within the
19
[1855] 24 LJMC 110.
purview of section 6 of the Ordinance. I would allow this appeal

to the extent of setting aside the order of Pickett, J, but on the
substantive issue of the extension of time I would dismiss it.
RAMSAY, J: Section 3 of the Lands and Deeds Registry Ordinance

provides for the establishment of a registry for the registration
of documents required or permitted to be registered and for the
appointment of a Registrar by whom the documents are to be
registered.
Section 4 (1) of the Ordinance, so far as relevant, is as follows:
Every document purporting to grant convey or

transfer land or any interest in land or to be a
lease or agreement for lease or permit of
occupation of land for a longer term than one
year . . . must be registered within the times
hereinafter specified in the Registry. . .
On or about 29th December, 1966, the appellant entered into

the agreement with Pan African Construction which has just
been read out by Doyle, Ag. CJ, and I shall refer to it as “the
Agreement dated 29th December, 1966”. It was not registered,
and on 26th June, 1967, the appellant filed a Notice of Motion in
the High Court for an order that the time within which it must be
registered be extended and that the Registrar of Lands and Deeds
do register it, notwithstanding the fact that it was not registered
within the specified time.
The motion was heard on 5th July and, although the Notice
was not amended, it would appear that the High Court considered
the application as covering other documents in addition to the
Agreement dated 29th December, 1966, and it adjourned the
application sine die for the main issue to be determined - that is
to say, whether or not there was in existence an agreement for
a lease. The ground for this adjournment was that until the court
was satisfied that there was in fact an agreement for a lease on
the documents put before it, there could be an injustice to the
proposed landlords.
It is against this order of adjournment that the appellant is
appealing, but the appeal relates only to the Agreement dated
29th December, 1966. It is not clear from the order of
adjournment whether or not the learned Judge considered the
effect of this document standing by itself, but as Doyle, Ag. CJ,
has just said, it contains no date of commencement of the
proposed lease.
The requirements of a valid agreement for lease were
recently considered by the Court of Appeal in England in Harvey
v. Pratt,20 where it was decided that a certain agreement was
invalid as an agreement for lease as it did not contain this date.
I take the following three extracts from Lord Denning’s
judgment:
It has been settled law for all my time that, in

order to have a valid agreement for a lease, it is
essential that it should appear, either in express
terms or by reference to some writing which
would make it certain, or by reasonable inference
from the language used, on what day the term is
to commence.
It is settled beyond question that, in order for
there to be a valid agreement for a lease, the
essentials are that there shall be determined not
only the parties, the property, the length of the
term and the rent, but also the date of its
commencement. And
This is an agreement for a lease to start at
some future time. The time has never been
specified or agreed.
There was, therefore, no concluded contract.
The Agreement dated 29th December, 1966, is clearly not a

valid agreement for a lease; but it remains to be decided whether
or not it purports to be an agreement for lease.
It is the Registrar of Lands and Deeds who effects
registration. The Agreement dated 29th December, 1966, may
have been thought by the parties to have been a concluded
agreement, but it is to be registered, not by them, but by the
Registrar. He is a qualified barrister or solicitor, and a perusal
by him of the Agreement would satisfy him that, on the face of
it, it does not purport to be an agreement for lease.
Sections 4 and 6 of the Ordinance therefore have no application
to it.
The motion, however, was also that the Registrar of Lands
and Deeds do register the agreement. We have not heard
argument on the scope of section 12 of the Ordinance, and I
would mention that this section was repealed and replaced after
20
[1965] 2 All ER 786.
the decision of the Rhodesia and Nyasaland Court of Appeal, in

Ismail v. Patel,21 that premises were sufficiently identified when
there was a reference to the number of the stand. It is doubtful
therefore if its registration could be ordered. I also would dismiss
the appeal.
(B) Effect of Issue of Provisional Certificate of Title
WHITE v. WESTERMAN AND OTHERS (1983) ZR 135
In White v. Westerman and Others, the plaintiff brought an

action for recovery of his property, and for mesne profits, on the
grounds that the first defendant, a prospective purchaser had
failed to pay the full purchase price and rent agreed. He
contended that the first defendant had in fact further surveyed
and sub-divided the property, eventually attempting to pass title
to the second defendant, who in his turn, obtained a mortgage
on his property from the third defendant.
It was held by the High Court (Mainga, J) that:
(a) The deed of assignment was signed only by the
purported purchaser and was therefore improperly
executed, null and void ab initio and should never
have been registered.
(b) The first defendant therefore, derived no title to the
land from the provisional certificate and could not
assign any title to the land to the second defendant.
(c) The second defendant could not mortgage the
property to the third defendants since he had no
proper title to the land; the title having remained at
all times in the hands of the plaintiff.
(d) A provisional certificate of title is subject to a claim
of a better title which, if proved may serve to cancel
or amend the provisional certificate.
MAINGA, J: The following are the undisputed facts in this case:

(a) That the Plaintiff, George Andries Johannes White,
is and was at all the material time the registered
owner of Sub-division 1 of Sub-division A Farm No.
691 Ferngrove, Lusaka in the Lusaka Province of
the Republic of Zambia; he had erected a house on
Plot 8 which he later gave to his son, Norman.
21
(1951), 5 NRLR 567.
(b) That the 1st Defendant, Ronald Westerman, became
interested in purchasing the house and first
approached the Plaintiff’s son who later introduced
him to the Plaintiff.
(c) That consequently, the 1st Defendant was allowed
to occupy the house sometime in November, 1976,
on the understanding that he would buy the property
at K7,000.00.
(d) That in pursuance of that agreement, the 1st
Defendant paid a deposit of K2,500.00 on the
understanding that he would pay another K2,500.00
two weeks later after he had sold his car.
(e) That the 1st Defendant did not pay the second
instalment as agreed because he had proceeded on
a long leave outside the country and had defaulted
but had agreed on return to remain in occupation.
(f) That the parties had agreed, as an interim measure,
that the 1st Defendant would pay rent at the rate of
K100.00 per month pending the completion of sale.
(g) That as time went on several meetings took place
between the parties and their advocates who at the
beginning were Mr Walisko for the Plaintiff and Mr
Annfield for the 1st Defendant.
(h) That a lot of correspondence changed hands over
the sale of the property.
(i) That a dispute arose between the parties after the
1st Defendant had defaulted in the payment of rent
and also after the parties had failed to agree on the
terms of the formal contract of sale.
(j) That the Plaintiff commenced the present action on
or about the 17th day of May, 1979, but whilst the
pleadings were going on between the Advocates,
the 1st Defendant put up some developments on
the property; surveyed and sub-divided the property;
and obtained a Provisional Certificate of Title from
the Registrar of Lands and Deeds without the
consent and the knowledge of the Plaintiff.
(k) That the 1st Defendant assigned the property to the
2nd Defendant on 7 August 1980 and that as result
of the Assignment the 2nd Defendant obtained
Provisional Certificate of Title and obtained a
mortgage advance of K24,000.00 from his employers
the 3rd Defendants, the Zambia State Insurance

Corporation.
(l) That the 2nd Defendants moved on to the property
on 12th August, 1980 and had since then made
certain developments and renovations to the property
amounting to K4,000.00.
It is also not in dispute that the 1st Defendant had obtained a
Deed of Assignment and Exchange, Exhibit P1, which was
registered with the Registrar of Lands and Deeds Registry on 2
June 1980. The Deed is purported to have been executed on 20
May 1980, naming the Plaintiff as the Vendor; the 1st Defendant
as the Purchaser and Harold Edwin Bosworth as the Transferor.
The Deed bears only the signature of the 1st Defendant.
The issue that I have to resolve first is the validity of that
Deed of Assignment and Exchange. In resolving the issue I
have been greatly assisted by the testimony of Mr Khan who
was Acting Registrar of Lands and Deeds. According to Mr
Khan, the Remaining Extent of Sub-Division A of Farm 691
was in the name of Harold Edwin Bosworth and that it was
registered on 3 November 1964, while the Deed of Assignment
and Exchange dated 20th May, 1980, was for various Sub-
Divisions the parties to which were Andries White, Ronald
Westerman and Harold Edwin Bosworth, the result of those
Sub-Divisions being that the 1st Defendant became the owner
of Sub-Division A of Sub-Division 1 of Sub-Division A of Farm
691. However, Mr Khan had explained that since the Deed of
Assignment and Exchange was not executed by Mr White (the
Plaintiff) and by Mr Bosworth it was not, properly executed
and that is should not have been registered in the first place. On
the question of the validity of the Deed of Assignment and
Exchange I am satisfied that it was not properly executed and
that it ought not to have been registered. I find therefore that
the Deed of Assignment and Exchange is null and void ab initio.
It is also quite clear to me that the 1st Defendant was given a
Provisional Certificate of Title on the strength of the Deed of
Assignment and Exchange. As the Deed ought not to have been
registered for want of proper execution, the 1st Defendant could
not have derived any Title to the land which he subsequently
purportedly sold to the 2nd Defendant. Since the 1st Defendant
did not have Title to the land he could not assign it to the 2nd
Defendant. It follows therefore that the Assignment between
the 1st Defendant and the 2nd Defendant was null and void.
The other issue for me to resolve is the position of the 2nd
Defendant and that of his employers, the 3rd Defendants the
Zambia State Insurance Corporation. It is not disputed that the
2nd Defendant purchased the land belonging to the Plaintiff from
the 1st Defendant on the strength of a Provisional Certificate of
Title. The 3rd Defendants had engaged Mr Chiti as its Advocate
within its legal Department to process the Assignment between
the 1st Defendant and the 2nd Defendant and later to process a
Mortgage Deed between the 2nd Defendant and the 3rd
Defendant. I have no doubt in my mind that Mr Chiti had
processed both the Assignment and the Mortgage Deed without
deducing title. It is possible that since the 3rd Defendant’s Legal
Department was newly established at the time, Mr Chiti was
not familiar with the problems of Conveyancing and had
proceeded to prepare the Deeds without having first satisfied
himself that the Land was free from any encumbrances. Since
the 1st Defendant had no title to the land, he could not here
assigned it the 2nd Defendant and as there could have been no
Assignment between the 1st Defendant and the 2nd Defendant
it follows that the 2nd Defendant did not have a proper title to
the land, this means that he too could not mortgage the property
to the 3rd Defendant since he had no title to it. The unfortunate
result therefore is that the property is and was at all the material
time that of the Plaintiff, this is because both the 1st Defendant’s
and the 2nd Defendant’s Provisional Certificates of Title had
been obtained irregularly.
The effect of the issue of a Provisional Certificate of Title is
dealt with under section 32 of the Lands and Deeds Registry
Act, Cap 287 of the Laws of Zambia.
32 The issue of a Provisional Certificate shall

confer upon the Registered Proprietor of the land
comprised in such certificate all the rights,
benefits and privileges under Parts III to VI of a
Registered Proprietor holding a Certificate of
Title except that the court may at any time upon
good cause shown at the suit of any person who
claims that he has a better title, cancel or amend
a provisional certificate and in that event may
order the rectification of the Register accordingly.
After considering the evidence before me and after studying

the documents upon which the parties have relied, I am satisfied
that the Plaintiff Mr George Andries Johannes White has a better

Title to Sub-Division 1 of Sub-Division A of Farm 691, Ferngrove,
Lusaka over and above that of the 1st Defendant; the 2nd
Defendant and that of the 3rd Defendants. I accordingly order
the cancellation of the following:
(a) The Provisional Certificate of Title No. 17623, which
was issued to the 2nd Defendant Stanley Sumbi
Sichivula on 7th August, 1980.
(b) The Provisional Certificate of Title No. 17603, which
was issued to the 1st Defendant Ronald Westerman
on 2nd June, 1980.
(c) The Provisional Certificate of Title No. 17601, which
was issued to the 1st Defendant Ronald Westerman
on 2nd June, 1980.
(d) The Provisional Certificate of Title No. 17604, which
was issued to Harold Edwin Bosworth on 2nd June,
1980.
(e) The Provisional Certificate of Title No. 17502, which
was issued to the Plaintiff George Andries Johannes
White on 2nd June, 1980.
(f) The Provisional Certificate of Title, No. 17600, issued
to Harold Edwin Bosworth on 6th June, 1980.
The effects of the above cancellations are:
(i) to re-validate the Provisional Certificate of Title No.
11313, which was issued to the Plaintiff Mr George
Andries Johannes White on 26th March, 1963; to
invalidate and nullify the Deed of Assignment and
Exchange made on 20th May, 1980, and registered
on 2nd June, 1980;
(ii) to nullify the survey and subsequent sub-divisions of
the Plaintiff’s property as sanctioned by the Lands
Disposition Committee on 28th February, 1978;
(iii) to nullify the Assignment between the 1st Defendant
and the Plaintiff’s land on 7th August, 1980.
Finally, as the 2nd Defendant had no Title to the Plaintiff’s
property, he could not mortgage the same to the 3rd Defendant
the Zambia State Insurance Corporation. It therefore follows
that the Mortgage Deed executed on 22nd August, 1980,
between the 2nd Defendant Stanley Sumbi Sichivula and the
3rd Defendant the Zambia State Insurance Corporation and
registered on 25th August, 1980, with the Lands and Deeds is
for all intents and purposes null and void ab initio. The Registrar
of Lands and Deeds is ordered to rectify the Register accordingly.
I would like, in passing, to state that Mr Chiti, the Legal
Counsel in the 3rd Defendant’s Legal Department displayed a
great degree of negligence and incompetence in the manner he
dealt with this conveyancing. The blame also falls squarely on
Mr Chamutangi for having registered Deeds which were not
properly executed. In my view both Mr Chamutangi and Mr
Chiti lacked professional skill in the way they handled this
property. The 3rd Defendants have themselves to blame for
employing an inexperienced man to run its Legal Department.
If things are not checked in time Zambia State Insurance
Corporation stands to be drained of a lot of funds through the
wrong Legal Advise given to it by its Legal Department.
Turning to the 2nd Defendant, Mr Ngenda had submitted
that the 2nd Defendant was a bona fide purchaser for value. It
is not in dispute that the 2nd Defendant was a bona fide
purchaser for value and I have no doubt in my mind that had he
known that the 1st Defendant had no Title to the property he
would not have gone ahead to purchase the Plaintiff’s property,
this does not mean that he is entitled to the ownership of the
property. The property belongs to the Plaintiff. I am however
satisfied on the evidence before me that the 2nd Defendant has
carried out some improvements on to the Plaintiff’s property. It
would be inequitable if he was not compensated for such
improvements. According to the Valuation Report prepared by
S.P. Mulenga Associates the house is now worth about
K28,000.00. The 2nd Defendant stated that he has spent
K4,000.00 on effecting some renovations and improvements to
the Plaintiff’s property. That figure has not been disputed and
accordingly I find that the 2nd Defendant spent K4,000.00 on
repairs and improvements to the Plaintiff’s property. I
accordingly order that the Plaintiff should refund the sum of
K4,000.00 to the 2nd Defendant for the improvements and repairs
he has carried out to his property.
On the question of what happens to the 2nd Defendant as a
result of his illegal occupation of the Plaintiff’s property I have
decided to grant him 6 months grace period to remain in
occupation of the house while he is making arrangements to
find alternative accommodation elsewhere. The period of six
months is with effect from today the 20th day of October, 1982,
and he must vacate the property on or before the 20th day of
April, 1983.
The Plaintiff has asked for mesne profits. I am satisfied that
he is entitled to recover rent from the 1st Defendant at the rate
of K100.00 per month from 1 March, 1977, to 20th April, 1983,

when the 2nd Defendant will have vacated the property. The
rent arrears will attract an interest at the rate of 6 per centum
per annum.
(c) Effect of issue of Certificate of Title - Fraud will vitiate

Certificate of Title
Chilufya v. Kangunda (1999) ZR 166
by NGULUBE, CJ, as he then was]
On 1st June, 1999, when we heard this appeal, we allowed it

with costs; we ordered that the Certificate of Title issued to the
respondent must be cancelled; we ordered that a 99 year lease
and the necessary Certificate of Title must be issued to the
appellant; and that the records at the Lands and Deeds Registry
must be rectified accordingly. We said we would give our reasons
later, and this we now do.
The action concerned the property known as Lot No. 4,
Munkulungwe, situate at Ndola. It was not in dispute that the
property was first allotted to the appellant Mr Chilufya on a
state lease for fourteen years from first January, 1978 and he
was issued with Certificate of Title No. 47570. Under the terms
of the lease, the appellant had to put up developments of not
less than twenty thousand Kwacha (K20,000). For its part, the
state covenanted to come and give Mr Chilufya a lease for 99
years on payment of the survey fees if he would not have been
in breach of his obligations.
There was incontrovertible and conclusive evidence that the
appellant put up developments worth far more than twenty
thousand Kwacha, in fact to the tune of K143 million. As the
Town Clerk of Ndola confirmed in a letter dated 17th October,
1997, to the Commissioner of Lands, the appellant has constructed
two houses built of concrete blocks and iron roofing sheets; he
has installed ZESCO electricity which cost him K13 million; he
has constructed two fish ponds; a pump house; a water reservoir;
a canal and two wells. The appellant has cleared the land and
has been growing horticultural produce. The appellant was paying
ground rent. At the end of 14 years lease, the Provincial Lands
Officer for the Copperbelt Province wrote to the Commissioner
of Lands asking him to prepare a 99 year lease in favour of Mr
Chilufya.
The foregoing facts were not capable of being disputed.
Meanwhile, unbeknown to the appellant, the respondent
surreptitiously obtained a Certificate of Title No. L1719 and a
99-year lease on the property. He sued the appellant for vacant
possession. The respondent was assisted in getting this land by
two officers who shamelessly wrote untruths in their letters to
the Commissioner of Lands. The Director of Legal Services of
the Ndola Council – (apparently without the blessing of his
superior, the Town Clerk who later disowned the falsehoods) –
wrote as follows:-
MS/LOT 4 Munkulungwe
7th November; 1996
The Commissioner of Lands
P.O. Box 30069
LUSAKA
Dear Sir,
RE: LOT 4 MUNKULUNGWE: NDOLA
Refer to my previous correspondence and

your subsequent notice to re-enter the above
Lot.
I wish to inform you that there is no
development on the same even after expiration
of your notice.
Could you therefore commence final re-entry
so that it is allocated to a serious developer.
Yours faithfully,
DIRECTOR OF LEGAL SERVICES
The Senior Registrar of Lands and Deeds

based at Ndola wrote as follows:-
17th December; 1996.
The Commissioner of Lands,

Lands Department,
P.O. Box 30069,
LUSAKA
RE: LOT/4-MUNKULUNGWE-NDOLA C.H.

KANGUNDA
I have received a representation from Mr C.H.
Kangunda a prospective applicant for Lot No.
4/M/Munkulungwe – Ndola.
According to Mr Kangunda the Ndola City
Council had unfairly denied him the
opportunity to acquire either of Lots Nos. 27,
94, 95 and 107 Munkulungwe by deliberately
frustrating his efforts.
He has shown me a series of correspondence
from the Ndola City Council over these Lots
in which for example Lot 27/Munkulungwe
he was even recommended for by Council but
later again fell out of favour and the same
went to somebody else. The latest being Lot/
4, Munkulungwe where the Council is
resisting to recommend him despite having
struggled to have same repossessed with the
blessing of the Ndola City Council. He now
appeals to your good office to exercise it moral
authority to prevail over the Ndola City Council
by ignoring procedural requirements under Land
Circular No. 1 of 1985 and offer the same to
him. All relevant correspondence are herewith
enclosed for your perusal.
Senior Registrar of Lands and Deeds
NDOLA-COPPERBELT PROVINCE
What the Director of Legal Services said was a lie and, as the
learned trial Judge properly found, no notice was in fact given to
Mr Chilufya. What the Senior Registrar wrote clearly established
the fraudulent nature of the subterranean manoeuvres the
respondent and his accomplices were engaged in. He counseled
that the procedural requirements be ignored; and they were indeed
ignored.
The learned trial Judge considered that, because the
respondent had been given a Certificate of Title, this was
conclusive of his title under s. 54 of the Lands and Deeds Registry
Act, Cap 185 which reads:
54. Every Provisional Certificate and every

certificate of title duly authenticated under the
hand and seal of the Registrar, shall be received
in all courts of law and equity as evidence of the
particulars therein set forth or endorsed thereon,
and of their being entered in the Register, and
shall, unless the contrary is proved by the
production of the Register or a copy thereof
certified under the hand and seal of the Register
or a copy thereof certified under the hand and
seal of the Register, or unless the rectification of
a Provisional Certificate is ordered by the Court,
be conclusive evidence that the person named
in such Provisional Certificate or Certificate of
Title, or in any entry thereon, as seized of or as
taking estate or possessed of such land for the
estate or interest therein specified as from the
date of such Certificate or as from the date from
which the same is expressed to take effect, and
that such Certificate has been duly issued.
The learned trial Judge considered that the appellant’s lease

had expired and that accordingly, it was immaterial that he had
not been notified of the moves to dispossess him. He considered
that the appellant was only entitled to compensation in respect
of the unexhausted improvements he had effected.
In our considered opinion, the learned trial Judge seriously
misdirected himself in approaching the matter this way. S. 54 of
Cap 185 does not authorise fraud and what happened here was
clearly a fraud on the appellant. As a matter of fact, the effect
of the issue of a Certificate of Title is aptly dealt with in section
33 of Cap 185 which reads:
33. A Certificate of Title shall be conclusive as

from the date of its issue and upon and after
thereof, notwithstanding the existence in any other
person of any estate or interest, whether derived
by grant from the President or otherwise, which
but for Parts III to VII might be held to be
paramount or to have priority; the Registered

Proprietor of the land comprised in such
Certificate shall, except in case of fraud, hold
the same subject only to such encumbrances,
liens, estates or interests as may be shown by
certificate of title and any encumbrances, liens,
estates or interests created after the issue of such
certificate as may be notified on the folium of
the Register relating to such land but absolutely
free from all other encumbrances, liens, estates
or interests whatsoever:
(a) Except the estate or interest of a
proprietor claiming the same land under
a current prior Certificate of title issued
under the provisions of Parts III to VII;
and
(b) Except so far as regards the omission
or misdescription of any right of way or
other easement created in or existing
upon any land; and
(c) Except so far as regards any portion of
land that may be erroneously included
in the certificate of title evidencing the
title of such Registered Proprietor by
wrong description of parcels or of
boundaries.
The law thus contemplates that fraud will vitiate the Certificate…
It was for the foregoing reasons that we allowed the appeal,
with costs to the appellant both here and below, to be taxed if
not agreed.
(d) No Rights by Adverse Possession can be acquired once

land has become Subject matter of a Certificate or
provisional Certificate of Title
Lumanyenda and Another v. Chief Chamuka and Others – (1988/

89) ZR 194
Court delivered by GARDNER, AG DCJ]
This is an appeal from a judgment of the High Court refusing to
grant an injunction in connection with possession of land. The
facts of the case are that the first and second appellants as
occupiers of land forming part of Farm No. 836, Kabwe, and on
behalf of other occupiers of similar land (such occupiers being
known as the Mulungushi Committee) issued a writ claiming an
injunction to prevent the defendants trespassing upon their
property and destroying buildings thereon and in the alternative
compensation and damages for such trespass and destruction
of property. At the hearing before this court it transpired that
the appellants claimed that they and their neighbours had been
in possession as farmers of the property in question for such a
number of years that the third respondents, who claimed title
under a lease dated 18 July 1929 (renewed in 1978), had lost
their right to possession of the property. Before the trial court
the appellants argued their case on the basis that they had
acquired a right by prescription and the learned trial commissioner
refused the application for an injunction on the ground that title
by prescription does not apply to leasehold land. It appears that
both counsel for the appellants and the respondents and the
learned trial commissioner ignored the proper basis upon which
this claim should have been made. It appears from the arguments
by counsel for the appellants that what he in fact was claiming
was a right by adverse possession, which right is governed by
the Limitation Act, 1939, and in elation to which a period of
twelve years limitation applies. It was therefore necessary for
the appellants to show that they or their predecessors in title
had been in possession of the land they were presently occupying
for a period of at least twelve years. In the event, when an
adjournment was granted in order for the respondent to produce
certificates of title and for the appellants to produce evidence of
occupation of the land, the appellants were unable to produce
evidence that they personally had occupied the land for more
than at most six years. Counsel on behalf of the respondents
produced certificates of title showing the third respondents held
a provisional certificate of title dated 6th of February, 1984
showing that it was the registered proprietor of Farm No. 836
and had held the land for a term of fifty years from 1st of July,
1949. He also produced a second provisional certificate of title
dated 30th September, 1971 setting out the same facts as the
first certificate. Finally he produced a full certificate of title dated
10th February, 1988 showing that the third respondent was
entitled to Farm 836 for a term of 99 years from 1st July, 1978.
On production of these certificates Mr Sifanu argued that, under
section 35 of the Land and Deeds Registration Act (Cap 287),
no right against the third respondent can be acquired by adverse

possession. Section 35 of the Act reads as follows:
35. If land had become the subject of a certificate

of title, no title thereto, or to any right, privilege,
or easement in, upon or over the same shall be
acquired by possession or user, adversely to or
in derogation of the title of the registered
proprietor.
In reply Mr Silweya drew our attention to section 32 of the Act

which reads as follows:
32. The issue of a provisional certificate shall

confer upon the registered proprietor of the land
comprised in such certificate all rights, benefits
and privileges under Parts III to VII of a
registered proprietor holding a certificate of title
except that the court may, at any time upon good
cause shown at the suit of any person who claims
that he had a better title, cancel or amend a
provisional certificate and in any event may order
the rectification of the register accordingly.
He argued that his clients were in the course of acquiring rights

by adverse possession under the Limitation Act, and therefore
they had a better right than the respondents. In this connection
he drew our attention to comments to this effect in the 32 ed. of
The Law of Real Property by Megarry and Wade at p. 578.
Following this argument Mr Silweya argued that the English
law, which provides that at first registration certain rights continue
to exist, should be applied in this case. Mr Silweya also drew
our attention to a government survey map of which we take
judicial notice, indicating that in 1975 the property in question
was referred to as being occupied by plantation owners. So far
as English law is concerned, we are quite satisfied that section
70 of the Land Registration Act ,1929 provides specifically that
all registration of land shall be deemed to be subject to certain
overriding interests which include rights acquired or are in the
course of being acquired under the Limitation Act. However,
we are satisfied that section 35 of the Lands and Deeds Registry
Act equally specifically provides that such a law shall not apply
in Zambia and no rights by adverse possession can be acquired
if land becomes the subject of a certificate of title. In this
connection in section 32 of the Act we construe ‘certificate of
title’ as including a provisional certificate of title. It follows that
it is our view that a person cannot continue to acquire a right
under the Limitation Act by adverse possession once even a
provisional certificate has been issued. In this case, therefore,
the appellants would have to show that they or their predecessors
in title had acquired rights by adverse possession for a period of
twelve years prior to the granting of the provisional certificate
on 5th February, 1948. This they have not done, nor have they
shown that their predecessors in title had acquired such rights.
The map dated 1975 indicates that persons other than the third
respondent may well have occupied the land in question for
planting crops at that date, and it is possible that the appellants
have acquired rights from the previous occupiers who themselves
may have obtained title by adverse possession for twelve years
prior to the issue of the first provisional certificate of title. No
evidence has been placed before us as to occupation by the
appellant’s predecessors and, although this evidence may be
available at the trial of the action, we cannot accept, from the
evidence adduced before the court, that there is a serious question
to be tried in terms of the principles laid down in the case of The
American Cyanamid Company v. Ethicon Ltd.22 We have
said that it may be possible for the appellants to adduce more
satisfactory evidence at the trial; we, therefore, do not intend to
comment on the effect of the grant of a full certificate of title
between the date of the lower court’s decision and the date of
the hearing of the appeal to this court. That is a matter for the
trial court to decide. We would however comment that, with
reference to the Supreme Court Practice (White Book 1988
ed.) Order 15 Rule 12 note 4, the Mulungushi Farming Community
does not come within the definition of numerous persons having
the same interest in the proceedings. Each individual will have a
claim for a different plot of land, and each will presumably rely
on different evidence to prove title by adverse possession.
Certainly, no representative action could lie for the alternative
claim for damages. The representative action was therefore
wrongly instituted. For the reasons we have given the appeal is
dismissed. Each party will bear their own costs.
22
[1975] 1 All ER 504.
Section 35 of the Lands and Deeds Registry Act provides that:
35. After land has become the subject of a Certificate

of Title, no title thereto, or to any right, privilege, or
easement in, upon or over the same, shall be acquired by
possession or user adversely to or in derogation of the
title of the Registered Proprietor.
Section 4 (3) of the English Limitation Act, which applies to Zambia by

virtue of The English Acts Extension Act, provides that
No action shall be brought by any other person to recover

any land after the expiration of twelve years from the
date on which the right of action accrued to him or, if it
first accrued to some person through whom he claims, to
that person…
Under English land law, adverse possession may be described as the

occupation of real property or land in a manner inconsistent with the
right of the true owner. Adverse possession entitles the possessor to be
protected in his possession against anyone who cannot show better title
and after twelve years (thirty years in the case of the Crown or land
owned by a spiritual eleemosynary corporation) the true owner’s title is
excluded and the possessor becomes owner, even though the true owner
has been ignorant of the possessor’s occupation.23
The whole idea behind the limitation Act is that a wronged person
must sue within a specified period of time from the moment the alleged
wrong took place. In the context of adverse possession this means that
an owner of land may be statute barred from bringing an action or claim
against a squatter or trespasser to recover possession of his land. In
other words, if an owner of land sleeps on his rights, those rights will be
extinguished in the sense that a court will not enforce them against the
person actually in possession of land. The ability of an adverse possessor
to acquire a better right to the land than the ‘paper owner’ is based on
the principle of limitation of actions.24 In terms of section 35, of the
Lands and Deeds Registry Act excerpted above, once land has become
the subject of a certificate of title (including a provisional certificate of
title as construed by the Supreme Court in the above case) no ‘title’
thereto, or to any right, privilege or easement in or over the same, shall
be acquired by possession or user, adversely to or in derogation of the
title of the registered proprietor.
23
See generally chapter 21 of Megarry and Wade, Law of Real Property (4th ed.). London: Stevens and Sons
Limited (2000).
24
In other words the principle of adverse possession cannot apply in
Zambia once the land has become the subject of Certificate of Title or
Provisional Certificate of Title. In the above case, the Supreme Court
pointed out that the appellants had to show that they or their predecessors
in title had acquired rights by adverse possession for a period of twelve
years prior to the granting of the provisional certificate of title to the
third respondent Zambia Consolidated Copper Mines Limited on 5
February 1948 i.e., twelve years before the land becomes a subject of
provisional certificate of title.
In view of the wording of section 35 of the Lands and Deeds Registry
Act, land under customary tenure may be acquired by adverse possession.
Of course this will bring in the issues of whether there is an equivalent
concept under customary tenure to the principle of adverse possession
under English land law. Elias has observed that as a rule, customary
tenure knows nothing in the nature of prescriptive claim to land25 because,
according to him, the theory under customary tenure is that no land is
without an owner. Elias has further observed that an individual may lose
his right to his allotment for unreasonably long non-use. He observed
thus:
There is no Statute of Limitation laying down fixed periods

during which recovery or redemption should take place
on pain of forfeiture... But it is only fair to add that
customary law itself has always had a definite though
rudimentary rule that, in the absence of very good reasons,
abandonment of one’s land for periods varying from three
to seven years, according to the locality and type of land
works an automatic forfeiture. Similarly, long and
undisturbed possession of a piece of land by another has
often been taken to be strong presumptive evidence of
abandonment by the owner. Thus, in a boundary dispute
between two divisions of an Akim State on the Gold Coast,
the State Council sitting as an Appeal Court, held that
ownership of the disputed land must be presumed in favour
of the defendants who admittedly were first on the land.
This tendency to prescribe in favour of the adverse
possessor has also been noted among the Kamba of Kenya,
of whom Penwill wrote: ‘possession of land now implies
possession by normal Kamba title, and he who alleges the
contrary must prove it.’ Similar notions of possession
prevail in many other African societies. Basically, this
25
Elias, T.O., The Nature of African Customary Law. Manchester: Manchester University Press (1952), at p.
166.
African way of regarding the entrenched adverse

possessor is little different from Von Savigny’s idea that
‘ownership is adverse possession ripened by prescription,
or from the English law doctrine that possession is ‘nine
points of the law’. Only, in African condition, a definition
of the principles being applied in an actual case is scarcely
ever attempted and the theories underlying the rules acted
upon are seldom stated.26
Commenting on the absence of limitation of time under native customary

law, Meek observed and commented thus:
There is one further feature of native systems of land

holding to which some reference should be made, namely
the absence from native customary law of any limitation
of time within which claims over land-or indeed anything
else can be asserted or enforced. This may be a matter
of no great consequence under a shifting system of
cultivation, for if a farmer is dispossessed of one plot of
land he can go to another. But where land has become
valuable, or plantation crops are grown, sudden
dispossession may inflict serious injustice. The absence,
from native law of any ‘Statute of Limitation’ has in many
dependencies been considered a serious bar to security
and so to development and to be an encouragement of
recurrent litigation and many forms of fraud, such as the
postponement of claims to land until the land has been
extensively improved.27
The decision in the Lumanyenda case, is important in view of many

claims to titled land by squatters in Zambia whose usual explanation is
that they or their ancestors have lived on the land for so many number of
years and cannot now be evicted or removed by the title holder as they
have nowhere to go. This is exactly what transpired in the case of Roberts
v. Bandawe and 24 Others.28 This was an appeal by the appellant to
the Lands Tribunal in which he was seeking an order that the respondents
vacate the remaining extent of Farm No. 643 Lusaka which he owned.
The respondents, most of whom were at one point employed by the
appellant’s late father, had set up a village on the farm without the
appellant’s or his late father’s consent. The respondents alleged in the
Lands Tribunal that their forefather’s set up a village called Kasavera
26
Ibid., at pp. 167-168.
27
Meek, C.K., Land Law and Custom in the Colonies. London: Frank Cass and Co. Ltd (1968), pp. 24 - 25.
28
LAT 20/99.
long before they were born and after their forefathers died they remained
in that village and further that they would have nowhere to go if they
were removed from that village.
In delivering the judgment, the Lands Tribunal observed and
commented thus:
…We have considered the evidence of all parties, the

submissions and all documents on record. It is common
cause that Farm No. 643 Lusaka is registered in the name
of the Appellant. It is also common cause that the
Respondents have been requested by the Appellant to
vacate the said farm but the Respondents have refused
to vacate. It is common cause that the Appellant did offer
the Respondents an alternative land on which the
Respondents could be resettled but the Respondents have
refused to accept that offer. It is also common cause that
most of the Respondents were employed by the
Appellant’s late father, Herbert John Roberts who was
murdered on 29th December, 1999. What is in dispute is
whether, the Respondents are entitled to remain on the
farm under dispute and whether the Appellant is entitled
at law to seek an order to remove the Respondents from
this land for which he holds title. From the evidence we
have already summarised and from the letter referred to
earlier, it is very obvious that the Respondents have been
given enough options and time for vacating the land in
dispute. The Respondents have however, been adamant
and have refused to move. Their colleagues (three families)
agreed to move and have since been resettled somewhere
else. In fact efforts to remove the Respondents started
long time ago by the Appellant’s late father Herbert John
Roberts and it would appear that only a Mr Mwale was
exempted from this move because of death threats if this
man was moved from this farm. The Respondent’s
argument appears to be that, they were given this land by
Chieftainess Nkomeshya but there is no documentary
evidence to this effect. In any case how could the
Chieftainess have done that for a piece of land which is
held under title by somebody else.
Section 33 of the Lands and Deeds Registry Act

provides this [sic]:
A Certificate of Title shall be conclusive as from the date

of its issue and upon and after the issue thereof,
notwithstanding the existence in any other person of any
estate or interest, whether derived by grant from the
President or otherwise, which but for Parts III to VII
might be held to be paramount or to have priority; the
Registered Proprietor of the land comprised in such
Certificate shall, except in case of fraud, hold the same
subject only to such encumbrances, liens, estates or
interests as may be shown by such Certificate of Title
and any encumbrances, liens, estates or interests created
after the issue of such Certificate as may be notified on
the folium of the Register relating to such land but absolutely
free from all other encumbrances, liens, estates or interests
whatsoever:
(a) Except the estate or interest of a proprietor claiming
the same land under a current prior Certificate of
Title issued under the provisions of Parts III to VII;
and
(b) Except so far as regards the omission or
misdescription of any right of way or other easement
created in or existing upon any land; and
(c) Except so far as regards any portion of land that may
be erroneously included in the Certificate of Title,
evidencing the title of such Registered Proprietor by
wrong description of parcels or of boundaries.
Section 35 of the same Act provides as follows:
35. After land has become the subject of a Certificate

of Title, no title thereto, or to any right, privilege, or
easement in, upon or over the same, shall be acquired by
possession or user adversely to or in derogation of the
title of the Registered Proprietor.
We are mindful that clause 12 of the exceptions and

reservations contained in an indenture of Grant of Final
Title marked ‘annexture B’ attached to the Certificate of
Title relating to this land prohibits the Lessee (the
Appellant), from disturbing or removing people who are
found on the land without the consent of the President.
The clause reads:
No natives living on the said land and no native
village or plantation existing thereon at the date
of those present shall be disturbed or removed
without the consent in writing of the Governor
but when such consent shall have been given,
the site of any such village or plantation shall
vest in the purchaser in fee simple.
The term ‘Governor’ was used prior to independence but

since then the term ‘President’ has been used. We are
not satisfied that any of the Respondents were settled on
this land before the first Certificate of Title was issued in
1926. Our understanding is that the presence of the
Respondents is by virtue of their employment by the
Appellant’s late father.
The Respondents were offered an alternative land
where they would have been resettled, they were offered
transport for easy transfer, they were offered building
materials which they would have taken for use to build
new structures. We have also taken note that even as the
Respondents were coming to attend sessions before us
they were being transported by the Appellant. Surely how
much more reasonable can one be. Mr Kadonda’s
evidence in so far as his stay on the farm was concerned,
made it clear that none of the Respondents were settled
on the farm before the Appellant’s late father moved on
the farm. Nobody challenged Mr Kadonda’s testimony.
Our view is that adverse possession would not apply in
this matter.
We find no reasons why this appeal cannot succeed.
We therefore allow the appeal and declare that the
Appellant is the registered title holder of Farm No. 643,
Lusaka. We order that the Respondents and their families
should vacate the said land within the next three (3) months
from the date of this judgment. We do not think, it would
be prudent to order costs against the Respondents. We
will therefore order that each party pays his/her own costs
of this appeal.
(e) Caveat - Who may lodge a caveat - Lodging a Caveat

without reasonable cause - Effect of Caveat
Construction and Investment Holdings Ltd v. William Jacks and

Co. (Zambia) Ltd (1972) ZR 66
SCOTT, J: By a letter dated the 11th July, 1967, Zambia Airways

Corporation gave a firm commitment to purchase the plaintiff’s
property on Stand No. 2397 in Stockton Street, Lusaka, at
maximum price of US $60,000. On the 14th July the solicitors
for the Corporation wrote to the plaintiff saying:
As you know, our client is not prepared to

purchase the property unless you have a clear
title and can give vacant possession on completion
of the buildings almost immediately. So long as
the dispute between your company and William
Jacks and Co. Ltd continues, therefore, it would
be pointless for our client to enter into any further
negotiations for the proposed purchase.
The title was not clear, because a caveat had been lodged on
the 1st June, 1967, by the defendant under s. 49 of the Lands
and Deeds Registry (Amendment) Ordinance, Cap. 85, claiming
an agreement for a lease with the plaintiff for a term of five
years from the 1st June, 1967, made on or about the 29th
December, 1966. After this caveat, and a second one, had been
withdrawn, the plaintiff made a fresh approach to Zambia
Airways Corporation only to be informed by a letter dated the
18th October, 1967, that the Corporation was not interested in
negotiating for the purchase of the property.
There can be no doubt, and it is not disputed, that this sale
fell through because of the caveat lodged by the defendant.
The plaintiff now claims compensation for the damage
sustained by it on account of the lodgement of this caveat.
Section 55 (1) of the Lands and Deeds Registry
(Amendment) Ordinance provides that any person lodging and
without reasonable cause shall be liable to make to any person
who may have sustained damage thereby such compensation
as may be just, but although s. 56 (3) of the English Land
Registration Act, 1925, is in similar terms I have been referred
by learned counsel before me to no judicial interpretation of the
words ‘without reasonable cause’, nor have I been able to find
any such interpretation. The meaning of these words has to be
ascertained from the Ordinance as a whole and from the context
in which they are found little, if any, assistance is to be found
from constructions placed on the words ‘reasonable cause’ in
other circumstances, because what is or is not reasonable
depends on the facts giving rise to the question. If one looks at
this Ordinance one observes that, where a person lodges a caveat
under s. 49, the Registrar is forbidden to make any entry on the
Register having the effect of charging or transferring or otherwise
affecting the estate or interest protected by the caveat. This
means that the registered proprietor is prevented from showing
a clear title and dealing with his property as he might wish to do
and would be able to do but for the caveat. It seems to me to be
necessary, therefore, to ask in what circumstances another person
would have the right to prevent the registered proprietor dealing
freely with the property registered in his name and to my mind
the answer should be if that other person has, or purports to
have, an enforceable interest in the property in question. If that
other person has not and does not even purport to have, any
such interest in the property, then he should not, in my opinion,
be justified in interfering with the rights of the registered
proprietor. I would say that a caveator’s cause for lodging a
caveat is dependent upon his claim to be entitled to an interest in
the land, and that ‘reasonable’ in those circumstances must mean
the same as ‘justifiable’. If he has not a justifiable claim then he
cannot be said to have reasonable cause for lodging the caveat,
and if he is not able to justify his claim it must follow that his
action in lodging the caveat was without reasonable cause. If
his claim is not justifiable and he interferes with the rights of the
registered proprietor so that the latter suffers damage, it would
appear to me that it is only right and proper that such damage
should be laid at the door of the person who, by his action, caused
it. One might therefore say Caveat Caveator. The right given
under s. 49 should be used with care, as it would not, in my
view, be justifiable to say that a person had a claim to an interest
in land unless it was supported by a valid document, or
documents, evidencing the interest, or document or documents
purporting to do so, and capable of sustaining an action thereon,
or apparently so. I do not feel able to accede to the suggestion
of learned counsel for the defendant that the test should lie simply
in whether the defendant believed it was entitled to an interest
in the land, which is a matter of law, because if the defendant
should be wrong and the plaintiff right in their beliefs and the
plaintiff is thwarted in a course of action it seeks to take, and is
entitled to take, in pursuance of its correct belief, and suffers
damage as a result of the defendant’s action in furtherance of a
wrong belief, it would be unjust that it should not be able to
recover from the defendant the damage it suffered.
The defendant’s claim to have an agreement for a lease was
based on a letter dated the 29th December, 1966, but the Court
of Appeal for Zambia decided in Judgment Number 30 of 1967
that this letter was patently invalid as an agreement for a lease
and did not even purport to be an agreement for a lease. The
defendant failed to justify its claim, but I will further observe
that whatever the defendant’s directors or officers may have
thought about the matter prior to the 26th May, 1967, they were
warned on that date that the plaintiff’s solicitors were of the
opinion that there was no binding contract, and even if there had
been an agreement for a lease embodied in that letter, it was on
the 1st June, 1967, null and void by reason of its non-registration
and the provisions of s. 6 of the Lands and Deeds Registry
Ordinance, Cap 84.
For those reasons I hold that the defendant’s claim to have
been entitled on the 1st June, 1967, to an interest, in the form of
an agreement for a lease, in Plot 2397, Stockton Street, was not
justifiable and that its lodgement of the caveat was without
reasonable cause.
The plaintiff is entitled to such compensation as is just, and I
consider the measure of that compensation should be analogous
to the measure of damages for a breach of a contract by a
purchaser of land to complete the transaction and accept a
conveyance because the plaintiff was prevented from deriving
the benefit it expected and would otherwise have enjoyed but
for the action of the defendant.
I am satisfied that the plaintiff took reasonable steps to
mitigate its loss by trying to secure another purchaser at a similar
price but it was unsuccessful. It was under no duty to clear the
title, but took part in further discussions arranged at the instance
of the defendant during the early part of June. On the 26th June
the defendant gave notice to the Registrar of Lands and Deeds
that it would seek an order from the High Court extending the
time for the registration of the alleged agreement for a lease. It
is pure speculation as to what the result would have been if the
plaintiff had applied for the removal of the caveat under s. 54 of
Cap 85, or how long it would have been till final judgment. The
plaintiff intervened in the defendant’s application and the matter
was concluded by the Court of Appeal on the 21st August.
The normal measure of damages, where there has been a
breach by a buyer, is the contract price less the market price at
the contractual time fixed for completion. So the measure of
compensation should be the injury sustained by the plaintiff by
reason of the defendant having prevented the performance of
the contract about to be concluded between the Zambia Airways
Corporation and the plaintiff. The question is, how much worse
is the plaintiff by the diminution in the value of the land, or the
loss of the purchase money, in consequence of the non-
performance of the contract? (Applying Laird and Pim [1841]
7, M. & W. 474.) The old rule of common law as to damages is
‘where a party sustains a loss by reason of a breach of contract,
he is, so far as money can do it, to be placed in the same situation
as if the contract had been performed.’
The contract price was £60,000. The market price in July,
1966, when it can be fairly presumed the contract would have
been completed, is a matter of deduction. There are two
valuations before the court: one of £35,000 on the 24th June,
1967, and the other of K63,000 on the 14th June, 1968. These
are not so very different but are far less than the contract price
agreed upon. The figure to be determined is the market price,
which can be considerably higher than an individual’s valuation,
though in theory it should not be. Who should know better than
Mr Francisco, the director managing the plaintiff company, what
the market value was? In his evidence he said £60,000 was the
price I would quote if I were asked it. In June, 1967, it was
valued at £35,000. It is possible I was asking too much but I had
inquired about other similar properties to ours ... I don’t think it
was too high. Others sold at similar high prices . . . I had no
minimum price but would have sold between 55 and 60.’ From
this I conclude that he considered that a willing purchaser would
be prepared to pay £55,000, and the fact that there was not a
willing purchaser was not because of the price. It is not the
plaintiff’s case that it lost an exceptional bargain. The premises
were not subsequently sold but the assets of the plaintiff company
and of Pan Africa Construction Co. were amalgamated and in
early 1968 Lonrho took sixty per cent of the shareholding on the
basis of certain inventories, in one of which the value of the
premises in question was put at £55,000. As this was the lowest
figure at which the plaintiff would have sold and is the figure
accepted by Lonrho in its dealings with the two companies it is
my finding that it is probably the correct figure to be taken as
the market value in July, 1967. If that figure is inflated then it
was Mr Francisco who was responsible and he himself has not
sought to prove or show that the market value was any lesser
figure. The damage sustained was therefore £5,000. This is not
a case were interest should in addition be awarded because the
plaintiff retained the property and had the use of it, to the extent
that its associated company, Pan Africa, occupied the first floor
of the office block and part of the warehouse between October,
1967, and March, 1968. Judgment is therefore given for the
plaintiff company in the sum of K10,000. Costs will follow the
event to the plaintiff. Let the K100 paid into court by defendant
be paid out to the plaintiff.
In Lenton Holdings Limited v. Airforce Moyo, 29 the

respondent, a squatter who developed a piece of land belonging
to an absentee landlord, allowed the appellant to share the use
of such land. When the appellant’s Managing Director discovered
that the land did not belong to the respondent, he fraudulently
obtained a certificate of title in favour of the appellant on the
strength of a forged assignment and attempted to sell the land to
a third party. The respondent learnt about the fraud and took
steps to have the fraudulent transaction set aside by the Lands
Department. Thereafter, the respondent entered a caveat against
the land. Meanwhile, the appellant’s Managing Director sought,
and found, the owner and, by misrepresentations, persuaded the
latter to assign the property to the appellant. The appellant
attempted to register the second, and otherwise lawful
assignment without paying the full price but was prevented from
doing so by the caveat lodged by the respondent. The appellant’s
action against the respondent for the removal of the caveat was
dismissed by the High Court. On appeal to the Supreme Court,
the appellant contended, among other things, that the respondent
had failed to establish that he had any interest in the property to
justify the lodging of a caveat.
It was held by the Supreme Court after considering the
provisions of sections 76 and 77 of the Lands and Deeds Registry
Act, that to be effective, a caveat should disclose the interest
claimed and further that where a copy of the caveat is not
29
[1984] ZR 55.
produced in court to prove the interest claimed, its registration
at the Lands and Deeds Registry will raise a presumption that it
disclosed an interest in favour of the person lodging it.
(g) A person who acquires title to land in the absence of any

encumbrances and who does so without having notice of
a prior fraudulent transaction, acquires good title to land.
Any person having an interest in land, either by way of an
unregistered agreement, transmission, unregistered
mortgage or purchase can place a caveat against such
land – Effect of Caveat
Magic Carpet Travel and Tours v. Zambia National Commercial

Bank Limited [1999] ZR 61
[The facts of the case appear from the Judgment of Mr Justice

Silomba]
By an originating Summons the plaintiff, Magic Carpet Travel

and Tours Limited, has applied for the following reliefs:
(a) An order to secure the removal of the caveat placed on
stand number 5633, Lusaka, by the defendant, Zambia
National Commercial Bank Limited; and
(b) An order for the Registrar of Lands and Deeds to cause
to be registered in the Lands and Deeds Registry an
order withdrawing the caveat from stand number 5633,
Lusaka.
The plaintiff and the defendant have filed the affidavits in support
and in opposition to the originating summons respectively. At
the hearing of the matter, the parties, legal representatives
submitted orally and both of them relied on their client’s affidavits.
The learned legal counsel representing the plaintiff told the court
that the plaintiff bought the property in stand number 5633,
Lusaka, from a third party and free from any encumbrances.
He said that the Certificate of Title number L2618 was obtained
in May 1995, after the legal requirements, including the
requirement of obtaining the consent of the President to the
assignment of the stand were complied with.
The learned legal counsel submitted that it was surprising to
the plaintiff to discover that the defendant had placed a caveat
on stand number 5633, Lusaka, as an intending mortgagee. He
said it was surprising because the defendant was not even known
to the plaintiff, the defendant was not a mortgagee as the plaintiff
had never borrowed money from it to entitle it to place a caveat

against the stand.
In his submissions, the learned legal counsel referred the
court to section 79 of the Lands and Deeds Registry Act, which
provides that all transactions to land made before a caveat is
lodged are lawful. Consequently, he said that if a caveat was
lodged after the plaintiff had acquired property, the applicant
had good title to that property. He disclosed that at the time the
plaintiff bought the property, no mortgage was registered against
it in the Lands and Deeds Register. It was his contention, and I
agree with him, that had the mortgage been registered, the
applicant would not have obtained title without discharging the
mortgage first. In opposition, the learned legal counsel
representing the defendant stated that the caveat lodged by his
client was lawfully lodged and satisfied the requirements of
section 76(c) of the Lands and Deeds Registry Act. As regards
the provision of section 79 of the same Act, that all transactions
made before a caveat was lodged were lawful, the learned legal
counsel conceded that, that was the law. He however, pointed
out that the exception to the law was where fraud had been
established to have existed before the transaction took place.
With regard to the requirement of section 4 of the Lands and
Deeds Registry Act, on the need for every mortgage to be
registered, the learned legal counsel submitted that where a
borrower deposited title with a bank as security for the money
borrowed, a bank could choose either to register the mortgage
or simply hold on to the title deed. In the latter sense, what was
created was an equitable mortgage which did not require
registration, he said. In his considered view, the defendant was
lawfully entitled to place a caveat in order to secure its interest
against the owner of the property who fraudulently obtained a
duplicate certificate of title and assigned the property to another
person without the consent or knowledge of the defendant. He
accordingly, prayed the court to order the dismissal of the
application.
The issues that arise from the affidavits both in support of
and in opposition to the originating summons, as well as, from
the oral submissions of the learned legal counsel, are three: The
first one related to the acquisition of the stand by the plaintiff
without notice of fraud and the consequences of such an
acquisition. The second issue is whether or not the entry of a
transfer of land in the register before a caveat is registered is
valid; and thirdly, the significance of an equitable mortgage and
the risks involved.
From the facts of the case, it is not in dispute that Major
Richard Kachingwe entered into mortgage arrangement with
the defendant to secure some money. The only collateral he
provided was a certificate of title to Stand Number 5633, Lusaka
thereby creating an equitable mortgage between the defendant
and himself. It is also not in dispute that Major Kachingwe
fraudulently assigned the stand to S.N. Patel and S.H. Patel
through the use of a duplicate certificate of title with he obtained
on the pretext that the original certificate had been lost when in
fact this was not the case. The fraud becomes even more serious
if the issue of a duplicate title was not preceded by an
advertisement.
The plaintiff then came on the scene and bought the property
from the two Patels. As far as the defendant was concerned,
there were no encumbrances, such as, a registered mortgage
appearing on the register. Had that been the case, there would
have been no assignment to the plaintiff without discharging the
mortgage first. The question is, did the plaintiff get a valid title?
The answer is yes. From the affidavits and submissions, there is
nothing to suggest that the plaintiff was not an innocent purchaser.
The facts show that the plaintiff acquired the title without any
notice of fraud. There is no evidence that the plaintiff acted
fraudulently.
A person who acquires title to land in the absence of any
encumbrances and who does so without having notice of prior
fraudulent transaction acquires good title to the land. This would
seem to be the position in law as exemplified in the case of
Zambia Postal Services Corporation v. The Attorney-General
and Others.30 On the available facts, I would say, therefore,
that the plaintiff has acquired good title to Stand Number 5633
and the orders prayed for at the beginning of this ruling are
accordingly granted.
With regard to the second issue, the law is very clear. Any
person having an interest in land, it could be by way of an
unregistered agreement or transmission or by way of an
unregistered mortgage or purchase, can place a caveat against
such land. The placing of a caveat effectively means that no
dealings in such land can be permitted after the registration of a
caveat. In essence, a caveat is an instrument that cautions or
alerts other interested parties about the caveator’s interest in
30
the land thereby protecting the caveator against any further

dealings in the land by other people. It is not retrospective in
effect. In the present case, the caveat was registered after the
plaintiff had obtained title with a view to limiting the plaintiff in is
future dealings with the stand. The position is unattainable in
law.
On the last issue of an equitable mortgage, the position at
common law is that once a borrower has surrendered his title
deed to the lender as security for the repayment of a loan, an
equitable mortgage is thus created; the borrower, in such a
relationship, cannot deal with the land without the knowledge
and approval of the lender whose interest in land takes
precedence. One of the shortcomings of an equitable mortgage
is that it is not registered in the Lands and Deeds Registry as an
encumbrance against the land; the relationship between the lender
and the borrower is one that is based on mutual trust between
the two.
The lesson flowing from the present case is that an equitable
mortgage is open to abuse; in cases of fraud, an equitable
mortgage cannot, of itself, provide sufficient security for the
repayment of the loan. With the decline in the economic fortunes,
the majority of borrowers have a tendency for dishonesty. To
counteract the dishonesty, any potential mortgagee is strongly
advised to take advantage of section 76 of the Lands and Deeds
Registry Act by registering a caveat against a mortgaged
property as a matter of routine.
The plaintiff has succeeded and the costs of this suit shall
follow the event to be taxed in default of an agreement.
(h) Appeals to Court from Decisions of Registrar - Section

87 of the Lands and Deeds Registry Act. Action to be
commenced by way of appeal
New Plast Industries v. The Commissioner of Lands and Attorney-

General, (2001) ZR 51
[The facts of the case appear from the Judgment of SAKALA, AG DCJ,
as he then was]
This is an appeal against a ruling of the High Court on a

preliminary issue. It is also an appeal against the refusal by the
High Court to review its ruling on the same preliminary issue.
The short facts are that the appellant had obtained leave to
apply for Judicial Review against a decision of the Acting Chief
Registrar of Lands and Deeds Registry dated 14th March, 2000.
In her decision, the Acting Chief Registrar had cancelled entries
numbered 3,4,5 and 6 in the Lands and Deeds Register in respect
of property No. LUS/2758/A. She further ordered that the title
deed in the said property should revert to the first respondent
and that the appellant should surrender the certificate of title
previously issued to the appellant for cancellation.
The action for Judicial Review was commenced against four
respondents namely; Sandra Nayame, first respondent, P.S.
Kinnear, second respondent (sued in her personal capacity and
as the Acting Registrar of Lands and Deeds), the Commissioner
of Lands, third respondent and the Attorney-General as fourth
respondent. The notice and the memorandum of appeal only
cited the Commissioner of Lands and the Attorney as first and
second respondents respectively. In the action, the appellant
sought orders of certiorari mandamus, declarations and
damages.
The brief facts supporting the application for leave to apply
for Judicial Review were that the appellant entered into a lease
agreement dated 16th July, 1996 with one Joselyn Nayame in
respect to her premises at Plot No. 2758A, Kamwala, Lusaka
for a period of three years at an agreed rental of K600,000 from
1st January, 1997. The said Joselyn Nayame, not party to
proceedings before the trial court, by an assignment in writing
dated 29th April, 1999, transferred all the unexhausted
improvements in the land in extent 102 square meters of S/DA
of Plot 2758 Kamwala for a consideration of K21,600,000:00.
This transaction was duly registered in the Lands and Deeds
Register on 20th April, 1999. Consequent upon this assignment,
a certificate of title No. L2904 of the same date was issued to
the appellant. On 14th March, 2000, the Acting Chief Registrar
of Lands and Deeds Registry, the second respondent in the
application at trial, advised the appellant in writing that she had
taken steps to cancel entries numbered 3, 4, 5 and 6 in the Lands
and Deeds Registrar in respect of S/DA of Plot No. 2758A,
Kamwala, Lusaka on an allegation by Sandra Nayame, the first
respondent in the application, to Joselyn Nayame (not a party to
the proceedings) was fraudulently procured and that the appellant
should surrender back the title deed to be reverted to first
respondent, Sandra Nayame. On 22nd March, 2000, the
advocates for the appellant wrote the Acting Chief Registrar to

reverse the cancellations, which were made by the
Commissioner of Lands. The Acting Chief Registrar declined
and advised that the appellant should seek recourse in a court of
law.
We have deliberately delved into the facts of this matter to
highlight the issues involved in the main action to ascertain
whether, on the substantive issues, counsel for the second, third
and fourth respondents raised a preliminary issue namely, that
the Lands and Deeds Registry Act provided for a procedure
under section 87 for appealing against a decision of the Chief
Registrar. The gist of the submission before the High Court was
that the commencement of an action by way of Judicial Review
was improper and did not comply with the procedure provided
under the Lands and Deeds Registry Act. Suffice it to mention
that Mr Simeza, who also appeared for the appellant at the High
Court, vehemently opposed the preliminary issue on ground that
section 87 of the Lands and Deeds Registry Act did not provide
for procedure appeal. The learned trial Judge considered the
submissions on the preliminary issue. After perusing section 89
of the Lands and Deeds Registry is adequately provided for
under the Act and that Section 87 of the Act was specific. It
provided that any aggrieved party may appeal to the High Court
following the procedure in appeals from the Subordinate Court
to the High Court. The court found that Judicial Review was a
mode of commencing an action while the procedure provided
under the Land and Deeds Registry Act is a mode of appeal.
The court concluded that the appellant had adopted an erroneous
and irregular procedure. The preliminary issue was upheld. The
whole action was dismissed with cost.
After the ruling of the court dismissing the whole action on a
preliminary issue, the appellant applied to court to review its
judgment pursuant Order 39 (1) of the High Court Rules. Before
the summons could be uplifted and without hearing the appellant,
the court dismissed the application on the same ground that the
application for Judicial Review was irregular.
Mr Simeza, on behalf of the appellant, filed written heads of
argument based on three grounds but not argued in the order as
per written heads. The first ground argued was that the learned
trial Judge erred in law when she held that notwithstanding the
relief sought in the application for Judicial Review, the procedure
used and sought was improper and irregular and dismissed the
application for Judicial Review. The gist of submission on this
ground was that the mode of commencement of proceedings
largely by the relief sought. The argument by Mr Simeza was
that if one sought the prerogative remedies in public law, such
as certiorari, mandamus or prohibition, such remedies can only
be obtained in an action for Judicial Review as an ordinary writ
or indeed an appeal may not be appropriate for such action.
In countering the submission by Mr Simeza, Mr Jalasi
supported the learned trial Judge as having been on firm ground
when she held that the application for Judicial Review was
improper and irregular. Mr Jalasi contended that the provisions
of sections 87 and 89 of the Lands and Deeds Registry Act,
Cap 185 are very clear. They provide for a procedure to be
followed by a party aggrieved by a decision of the Registrar in
respect of any application under the Lands and Deeds Registry
Act. Mr Jalasi submitted that in terms if section 10 of the High
Court Act, the appellant should not have rushed to the aid of
Order 53 for Judicial Review under the White Book when the
provisions of the Lands and Deeds Registry Act were self-
explanatory.
We have considered the submissions on this ground. In our
view, it is not entirely correct that the mode of commencement
of any action largely depends on the relief sought. The correct
position is that the relevant statute generally provides the mode
of commencement of any action. Thus, where a statute provides
for the procedure of commencing an action, a party has no option
but to abide by that procedure. Section 10 of the High Court
Act, Cap 27 is couched in very clear terms on the issue of
practice procedure. The section reads:
10. The jurisdiction vested in the Court shall, as

regards practice and procedure, be exercised in
the manner provided by this Act and the Criminal
Procedure Code, or any other written law, or by
such rules, order or directions of the Court as may
be made under this Act, or the said Code, or such
written law, and in default thereof in substantial
conformity with the law and practice for the time
being observed in England in the High Court of
Justice.
The arguments by Mr Jalasi were that section 87 of the Lands

and Deeds Registry Act, Cap 185 provides practice and procedure
under that Act of commencing actions by any aggrieved party.

This section reads:
87. If the Registrar refuses to perform any act or

duty which he is required or empowered by this
Act to perform, or if a Registered Proprietor or
other interested person is dissatisfied with the
direction or decision of the Registrar in respect of
any application, claim, matter or thing under this
Act, the person deeming himself aggrieved may
appeal to the Court.
Section 89 of the same Act provides for a procedure by way of

appeal. There is, therefore, no default in practice in matters
falling under the Lands and Deeds Registry Act. There is no
choice between commencing an action by an application for
Judicial Review or by an appeal.
We are satisfied that the practice and procedure in the High
Court is laid down in the Lands and Deeds Registry Act. The
English White Book could only be resorted to if the Act was
silent or not fully comprehensive. We therefore hold that this
matter having been brought to the High Court by way of Judicial
Review, when it should have been commenced by way of an
appeal, the court had no jurisdiction to make the relief’s sought.
This was the stand taken by this court in Chikuta v. Chipata
Rural Council,31 where we said that there is no case in the
High Court where there is a choice between commencing an
action by a writ of summons. We held in that case that where
any matter is brought to the High Court by means of an originating
summons when it should have been commenced by a writ, the
court has no jurisdiction to make any declarations. The same
comparison is applicable here. Thus, where any matter under
the Lands and Deeds Act is brought to the High Court by means
of Judicial Review when it should have been brought by way of
an appeal, the court has no jurisdiction to grant the remedies
sought. On this ground alone, this appeal cannot succeed. It
therefore becomes unnecessary for us to consider the ground
of appeal, which stated that the learned judge misdirected herself
in law when she held that the procedure on appeal from the
decision of the Registrar of Lands and Deeds is spelt out in
section 89 of Cap 185. We uphold the learned trial Judge on this
issue as well.
31
[1974] ZR 241.
The last ground argued was that the learned trial Judge erred
in law dismissing the application for review without affording
the parties a hearing. The submission was that the denial of
parties to be physically heard infringed the rules of natural justice
of the parties’ right to be heard. This submission in our view
over looked the fact that the application was supported by an
affidavit sworn by counsel for the appellant himself in which he
was then urging the court to review its ruling and to continue the
proceedings as if they had been begun by a writ. In the affidavit,
counsel had further deposed that there were so clearly spelt out
rules on procedure of appeal from the decision of the Registrar
to the High Court.
In a short ruling the court reiterated its earlier decision that
the procedure used was improper and irregular. The court
referred to section 89 in which the procedure is spelt out. We
wish to take advantage of the present appeal to make the point
that the content if what amounts to the hearing of the parties in
any proceedings can take either the form of oral or written
evidence. This depends on the nature of the application. Where
the evidence in support of an application is by way of affidavit,
the deponent cannot be heard to say that he was denied the
right to a hearing simply because he had not adduced oral
evidence. According to Practice Direction No. 11 of 12th January,
1968, in “all Ex-parte applications… The affidavit of facts
supporting the application… shall be left with the Assistant
Registrar… There will be no need for the application to attend
unless a Judge or Registrar otherwise directs… The Judges
decision will be endorsed on the affidavit…”
On the facts presented by the appellant’s application on
review, there was no need for the parties to have presented oral
evidence or oral submissions. The affidavit by counsel himself
was adequate. On the other hand, the nature of these proceedings
did not allow the court to treat them as begun by a writ as the
procedure allowed is that by way of appeal.
In the final analysis there is no leg on which this appeal can
succeed. It is dismissed with costs. The appellant is, however,
at liberty to commence the proceedings afresh following the
procedure allowed by law.
17.15 Summary of Chapter Seventeen
This chapter has examined and considered the salient provisions

of the Lands and Deeds Registry Act. The objectives of the
Lands and Deeds Registry Act are to provide for machinery for
the registration of documents, to provide for the issue of
certificates and issue provisional certificates of title and provide
for the mechanism for the transfer and transmission of registered
land. The Lands and Deeds Registry Act also serves the purpose
of securing publicity for documents relating to land. The Act
has quite a number of detailed provisions that have to be complied
with in the process of registering interests in land. A number of
cases have been excerpted and/or cited illustrating how a number
of sections under the Act have been construed by the courts.
665
Chapter Eighteen
STATUTORY CONTROL OF LAND USE IN

ZAMBIA
18.0 Introduction
At common law, any land owner was free to use and develop
his land in any way he wished provided he did not commit a
nuisance or trespass against his neighbour’s property.1 The
need to provide for a rational and integrated pattern in the process
of land use and development necessitated the involvement of
the legislature. The primary object of planning is to ensure that
all land is put to the use which is best from the point of view of
the community.
In England, before the enactment of the Housing Town
Planning Act of 1909, there were no general powers for local
authorities to control the development of land. A number of
successive statutes strengthened and extended the control,
culminating in the Town and Country Planning Act of 1932, which
vested planning powers over land in the Country as opposed to
towns.2 The essence of this Act, as well as the earlier statutes,
was the requirement for the preparation of a scheme. Local
authorities were required to prepare a scheme indicating what
development would be permitted in each part of its town or
district. There were powers of enforcement against land owners
who carried out development in contravention of the scheme.3
Legislation covering Town and Country Planning (just like
the Rent Act, and the Landlord and Tenant (Business Premises)
Act) eventually found its way into the Northern Rhodesia
protectorate as part of the colonial law of the territory. The first
planning law in Northern Rhodesia was the 1929 Town Planning
Ordinance.4 The general object of the Ordinance was to secure
proper sanitary conditions, amenity and convenience in
connection with laying out and use of land.5 The Ordinance,
which only applied in Crown land, gave powers to prepare
1
Megarry and Wade, The Law of Real Property (4th ed.). London: Stevens and Sons Limited (2000), p. 1086-
1087.
2
Ibid.
3
Ibid.
4
Chapter 123 of 1959 Edition of the Laws.
5
Ibid., section 23.
planning schemes for proclaimed or private townships with very

restricted powers of control and to control subdivisions under
20 acres. The Ordinance provided for the appointment of a Town
Planning Board with the power to prepare a plan for any town
referred to it by the Governor and impose building standards.
On 16 November 1962, the Town and Country Planning
Ordinance came into force.6 The Ordinance repealed the Town
Planning Ordinance of 1929.7 The main differences between
the repealed Town Planning Ordinance of 1929 and the Town
and Country Planning Ordinance of 1962, which at independence
became an Act,8 are the control of all subdivisions, wider powers
of control of development over peri urban areas, provision for
appeal, compensation and for planning of regions and the
inclusion of reserves, trust land if needed. The current Town
and Country Planning Act is modeled on the 1947 English Town
and Country Planning Act.
18.1 Objectives of the Town and Country Planning Act
The objectives of the Town and Country Planning Act are:

(a) to make provision for the appointment of planning
authorities;
(b) to establish a Town and Country Planning Tribunal;
(c) to provide for the preparation, approval and revocation
of local and structural plans;
(d) to provide for the control of development and sub-
division of land;
(e) to provide for the assessment and payment of
compensation in respect of planning decisions;
(f) to provide for the preparation, approval and revocation
or modification of regional planning; and
(g) to provide for matters connected with and incidental
to the foregoing.9
18.2 Application of the Act
In terms of application of the Act, the republic is not bound by

the provisions of the Act.10 The Act does not also apply to
customary areas as defined in the Lands Act.11 However, the
6
Chapter 123 of the Laws of Zambia 1964 edition.
7
See section 52 of the Ordinance.
8
9
See Preamble to Chapter 283 of the Laws Zambia.
10
See section 3 (1) of Chapter 283 of the Laws of Zambia.
11
Cap 184 of the Laws of Zambia.
STATUTORY CONTROL OF LAND USE IN ZAMBIA 667
President may, by statutory order apply all or any of the provisions
of the Act to any customary area.12
Section 3 (4) of the Act provides that notwithstanding the
provision of any other law, the Act shall apply in all matters
relating to land zoning and development. Section 3 (5) further
provides that, apart from the provisions contained under part
VIII, the provisions of the Act shall not apply to the area of any
mine township.
18.3 Disagreement between Republic and Planning Authority
As seen above, the republic is not bound by the provisions of the

Act. This is subject to the provisions of section 4. Section 4 of
the Act provides that the republic shall not carry out any
development or subdivision of land in an area subject to an
approved structure or local plan without prior consultation with
the planning authority. In case of disagreement between the
Republic and the Planning authority there is a requirement under
the section to refer the matter to the Town and Country Planning
Tribunal for an opinion. However, the Minister is not bound by
the opinion of the tribunal. The decision of the Minister on any
written submission made to him shall be final and not amenable
to challenge in any proceedings.13
18.4 Appointment of Planning Authorities
Section 5 (1) provides for the appointment of Planning

Authorities. The section provides that:
5. (1) The Minister shall designate the Director

as the strategic planning authority to-
(a) exercise such other functions as the
Minister may delegate to the Director
under section twenty-four; or
(b) exercise such other functions as may be
prescribed by the Minister;
Section 5 (2) provides that the local authorities set out in the
first schedule to the Act are appointed as planning authorities
12
Ibid., see Proviso; see the subsidiary legislation to the Act for the cases where the President has pursuant
to section 3 decreed or ordered the application of the Act to customary areas.
13
See subsections 1, 2, 3, 4, 5, 6, 7 and 8 of section 4.
for the respective areas described in the schedule.14 The Minister

may from time to time by statutory notice, appoint a planning
authority to either prepare a structure or local plan under the
provisions of section 15 or to exercise such functions as may be
delegated to it under the provisions of section 24.15
18.5 Settlement of Disputes: The Town and Country Planning

Tribunal
Section 6 of the Act establishes a Town and Country Planning

Tribunal whose jurisdiction, power and authority is conferred
upon it by the Act. The Tribunal consists of the President or
Vice-President and such members not less than two in number
as may be appointed by the Judicial Service Commission from
time to time to sit with the President or Vice-President. One of
the members of the tribunal appointed by the Judicial Service
Commission should be a qualified planner.16
The Secretary to the Tribunal is appointed by the Minister.17
Section 11 (1) of the Act provides for appeals to the Tribunal.
(1) Without prejudice to the provisions of section

twenty-nine and Part V
(a) any person whose interest in any land may
be affected by any decision of an appeal
by the Tribunal shall have the right to
appear and be heard on the hearing of
any such appeal;
(b) the Tribunal shall hear and determine the
matter of the appeal and may make such
order therein in addition to, or in
substitution for, the matter appealed
against as it thinks fit, including the award
of costs to any party to an appeal, subject
to the provisions of paragraph (c);
(c) if the Tribunal, after considering any
matter brought before it under this section,
is of the opinion that the appeal should be
allowed, it shall, before making any order
under the provisions of paragraph (b),
14
Under the Schedule the following are among the authorities with delegated powers: City of Lusaka, City
Council of Lusaka; City of Ndola, City Council of Ndola; City of Kitwe, Council of Kitwe; Kabwe Municipality,
Municipal Council of Kabwe; Livingstone Municipality, Municipal Council of Livingstone.
15
By Statutory Instrument 192 of 1996, the Minister approved the Municipal Councils of Choma, Mansa,
Mazabuka, Mbala, Mongu and Solwezi as Planning authorities for their respective municipalities.
16
Section 7 (5) of the Act.
17
Ibid.
afford the Minister or planning authority
an opportunity of making representations
as to any conditions or requirements
which he or it considers ought to be
included in the order and shall afford the
appellant an opportunity of replying
thereto, and thereafter the Tribunal may
make such order in the matter as it thinks
fit, and any such order shall be binding on
the Minister, planning authority and the
appellant:
Provided that the Tribunal shall not make any
order which would operate in conflict with any
provision of an approved structure plan or local
plan;
(d) all matters requiring to be determined by
the Tribunal shall be decided by a majority
of votes and such decision shall be the
determination of the Tribunal:
Provided that-
(i) any decision on a matter of law or
on whether a matter for
determination is a matter of fact or
a matter of law shall be made solely
by the President or the Vice-
President;
(ii) the President, the Vice-President and
each member shall have and shall
exercise one vote, and no adviser to
the Tribunal shall be entitled to vote
on any matter before the Tribunal.
(2) Where any person who has appealed to the
Tribunal under the provisions of this Act is
dissatisfied with the decision of the Tribunal,
he may, within twenty-eight days of such
decision, appeal to the High Court against such
decision.
18.6 Structure Plans or Local Plans
Part III of the Act (covering sections 15 – 18) deals with structure
or local plans. Before the Amendment Act number 21 of 1997,
structure plans and/or local plans were collectively known as
development plans. The Amendment Act removed development
plan and substituted it with structure or local plan wherever it
appeared under the Act.
Section 2 of the Act defines a local plan to mean ‘the plan

prepared by a planning authority under the direction of the
Director in accordance with section 16A’. Section 2 of the Act
further defines a structure plan to mean ‘the plan prepared by a
planning authority under the direction of the Minister in
accordance with section 16’. ‘Director’ is defined under section
2 to mean ‘the Director of physical Planning and Housing who
is a public officer in charge of Town and Country Planning’
Section 15 provides that:
(1) The Minister may by statutory notice-

(a) order a structure plan or local plan to
be prepared for any area specified in
such notice and may stipulate after
consultation with the planning authority
the time to be granted to the planning
authority for the preparation and
submission of the plan to him, and may
extend such time;
(b) change the structure plan or local plan
by additions or exclusions;
(c) change the area of an approved plan
by exclusions:
Provided that the order to prepare a structure
plan or a notice changing the area of a local plan
or an approved development plan shall not
become operative until forty-five days after the
date of publication of the said order or notice,
and any interested person may, within twenty-
one days after the date of the said publication,
object to the Minister to the preparation of such
a plan or such change in area and, where any
person does so object, the Minister may, prior to
the expiry of the said forty-five days, order a
public inquiry thereinto under section forty-nine,
in which case the said order or notice shall not
become operative until the Minister by statutory
notice so declares.
(2) The Minister shall cause an order made
under subsection (1) to be published in three
consecutive issues of a newspaper
circulating in the area to which the order
relates.
(3) Whenever the boundaries of the area of a
structure plan or local plan are extended, a
structure plan or local plan shall be prepared
for such extended area within the time to
be specified by the Minister or within such
longer period as he may agree.
(4) The Minister may, by statutory instrument,
order that in the preparation of a structure
plan, approved local plans may be
considered in that structure plan.
(5) A structure plan prepared under section (4)-
(a) may maintain the contents of the
approved local plans; and
(b) shall be submitted by the planning
authority to the Minister for approval.
Section 16 (1) deals with structure plans. The section provides

that:
(1) A planning authority shall submit to the

Minister for approval a structure plan
comprising:
(a) a survey of the planning area which
shall include-
(i) the principal and economic
charateristics of the area of
planning authority including the
principal characteristics of any
neighbouring areas;
(ii) the size, composition and
distribution of the population of the
area;
(iii) the communication, transport
system and traffic of the area or
neighbouring areas;
(iv) the effect of any changes which
may affect the development of the
area or the planning of such
development;
(v) any changes anticipated during the
period of the plan; and
(vi) such other matters as maybe
prescribed by the Minister;
(b) a written submission-

(i) stating the policy and general
proposals of the planning authority
in respect of the development and
other use of the plan in that area
including measures for the
management of traffic;
(ii) stating the relationship of the
proposals to general proposals for
the development and use of land
in neighbouring areas which
affect that area; and
(iii) containing such other matters as
may be prescribed by the Minister
by statutory instrument; and
(c) such diagrams, illustrations and
descriptive matters as the local
authority may consider appropriate to
explain or illustrate the proposals in the
plan.
Section 16A deals with local plans. The section provides that:
16A. (1) The director shall direct a planning

authority to prepare a local plan where that
area is designed under subsection (3) of
section sixteen as an area for development
in a structure plan which has been
approved by the Minister.
(2) A planning authority that is directed by the
director to prepare a local plan shall-
(a) prepare a survey of planning area;
(b) publicise the report of the survey
conducted under paragraph (a) in the
Gazette and other public media;
(c) make a copy of the proposed local
plan available for inspection by the
general public and state a period of
time within which representations in
respect of the local plan may be
made to such planning authority
which shall not be less than twenty-
eight days;
(d) afford interested persons an
opportunity to make representations
on the proposals; and
(e) consider any representations made
to it under paragraph (c).
(3) Where the local authority approves the
detailed plans of a private developer under
subsection (4) they shall be included in the
local plan for submission to the Director.
(4) A private developer may prepare detailed
plans for any part of the area designed
for development under subsection (1) and
the plan shall be submitted to the planning
authority for approval.
(5) A planning authority shall by resolution
adopt a local plan prepared under this
section and submit it to the Director.
(6) The Minister-
(a) shall before approving a structure
plan consider any representations
submitted by any person in respect
of the structure plan; and
(b) may cause a public inquiry to be
conducted by the Tribunal in respect
of the representations.
(7) The director-
(a) shall before approving a local plan
consider any representations
submitted by any person in respect
of the local plan; and
(b) may cause a public inquiry to be
conducted by the Tribunal in respect
of the representations.
(8) Part II shall apply for the purposes of
considering representations in respect of
a local plan or structure plan.
Section 17 deals with approval of structure plans or local plans.

(1) The Minister or Director may after

considering a structure plan or local plan
submitted under sections sixteen and
sixteen A, as the case may be-
(a) approve it in whole, or in part with or

without modifications; or
(b) reject it.
(2) The Director may on considering a local
plan refuse to approve such local plan if-
(a) the Director is not satisfied that the
objectives of the local plan has been
achieved; or
(b) it does not conform to the structure
plan as approved by the Minister.
Section 18 deals with alteration of structure plans or local plans.

(1) A planning authority may at any time after

the approval of a structure plan or local
plan in respect of any area, on its own
initiative or upon directives from the
Minister or Director, as the case may be-
(a) within the period prescribed as may
be specified in the direction from the
Minister or Director, as the case may
be; submit to the Minister or Director
for approval, proposals for the
alteration of an approved structure
plan or local plan.
(2) The planning authority shall furnish to the
Minister or Director, as the case may be,
a report comprising such modifications to
the structure plan or local plan as may be
necessary.
18.7 Control of Development and Sub-division of Land -

Planning Permission
The central concept under the Act is planning permission.

Planning permission is required for any development or
subdivision of land. Section 22 of the Act provides that:
(1) Subject to the provisions of this section and to

the following provisions of this Act, permission
shall be required under this Part for any
development or subdivision of land that is
carried out after the appointed day.
(2) The provisions of this Part, in so far as they
relate to development, shall apply only-
(a) in areas in respect of which there is an
order, made under the provisions of this Act,
to prepare a structure plan or local plan;
and
(b) in areas subject to an approved structure
plan or local plan: and
(c) in such areas as are within a distance of
twenty miles from the boundaries of any
area mentioned in paragraph (a) or (b); and
(d) in such other areas as may be specified by
the Minister by statutory notice.
Section 22 (3) of the Act defines ‘subdivision’ in relation to land

to mean:
the division of any holding of land into two or more

parts, whether the subdivision is effected for
purposes of conveyance, transfer, partition, sale, gift,
lease, mortgage or any other purpose, and ‘subdivide’
has a corresponding meaning.
The term ‘development’ is central to the power of planning

authorities to control the use and development of land in Zambia.
Section 22 (4) defines development to mean:
the carrying out of any building, rebuilding or other

works or operations on or under land, or the making
of any material changes in the use of land or
buildings but shall not include-
(a) changes of use of land or buildings where the
existing and the proposed uses both fall within
the same group of land or building uses which
may be prescribed;
(b) the carrying out of works for the rebuilding,
maintenance, improvement or other alteration
of any building, being works which affect only
the interior of the building or which do not
materially affect the external appearance of the
building;
(c) the construction of roads in an area not subject
to a structure plan or local plan or approved
structure plan or local plan, in respect of which

the Director of Roads is the highway authority;
(d) the carrying out by a highway authority of any
works required for the maintenance or
improvement of a road, being works carried out
on land within the boundaries of a road or road
reserve;
(e) the carrying out by any local authority or any
statutory undertaker of any works for the
purpose of constructing, inspecting, repairing or
renewing any sewers, drains, pipes, cables, rails
or such other apparatus as may be prescribed;
(f) the construction or use other than for human
habitation of any building or the use of any land
within the curtilage of a dwelling-house for any
purpose incidental to the enjoyment of the
dwelling-house as such;
(g) the use of any land for the purpose of mining
or agriculture, including the erection and use of
buildings for such mining or agricultural
purposes, but excluding the siting of buildings
within nine hundred and fifteen metres from
the centre line of any road or proposed road;
(h) the erection of temporary buildings required in
connection with any development for which
planning consent has been given, for a period
not exceeding twelve months or for such longer
period as the Minister or the planning authority
may permit;
(i) the construction and maintenance of roadways,
paths, standings and similar paved areas within
a holding, or within any public open space;
(j) development outside a development plan area
in any of the following, namely, forest reserves
protected forest areas and game reserves, but
excluding the siting of buildings within nine
hundred and fifteen metres from the centre line
of any road or proposed road;
(k) any other operation which may be prescribed.
Under section 24 of the Act the Minister may delegate to any

planning authority his functions under subsections (1) and (2) of
section 25 relating to the grant or refusal of permission to develop
or subdivide land.
Section 25 deals with application for planning permissions
(which is required under section 22 of the Act).
(1) Subject to the provisions of this section, where

application is made to the Minister or planning
authority to whom functions have been
delegated under section twenty-four for
permission to develop or subdivide land, the
Minister or planning authority may grant
permission either unconditionally or subject to
such conditions as he thinks fit, or may refuse
permission and, in dealing with any such
application, the Minister or said planning
authority shall have regard to the provisions of
the structure plan or local plan approved
structure plan or local plan, if any, so far as
material thereto, and to any other material
considerations:
Provided that the granting of any such permission
shall, in respect of the subdivision of land, other than
the subdivision for agricultural purposes of
agricultural land, situated outside areas subject to a
structure plan or local plan or approved structure
plan or local plan, be subject to the provisions of
subsection (4) of section twenty-three which shall
apply mutatis mutandis to any such permission.
(2) Without restricting the generality of subsection
(1), conditions may be imposed on the grant of
permission to develop or subdivide land
thereunder-
(a) for regulating the development, subdivision
or use of any land or requiring the carrying
out of works on any such land, so far as
appears to the Minister or planning authority
to be expedient for the purpose of or in
connection with the development or
subdivision authorised by the permission;
(b) for requiring the removal of any buildings
or works authorised by the permission, or
the discontinuance of any use of land so
authorised, at the expiration of a specified
period, and the carrying out of any works
required for the reinstatement of land at the

expiration of that period.
(3) Provision may be made by a development or
subdivision order for regulating the manner in
which applications for permission to develop or
subdivide land are to be made to, and dealt with
by the Minister or planning authority and in
particular-
(a) for requiring the planning authority, before
granting or refusing permission for any
development or subdivision, to consult with
such authorities or persons as may be
specified by the order or by directions given
by the Minister thereunder;
(b) for requiring the planning authority to give
any applicant for permission, within such
time as may be specified by the order, such
notice as may be so specified as to the
manner in which his application has been
dealt with;
(c) for requiring the planning authority to furnish
to the Minister, and to such other persons
as may be specified by or under the order,
such information as may be so specified
with respect to applications for permission
made to it, including information as to the
manner in which any such application has
been dealt with.
(4) The Minister and planning authority, as the case
may be, shall keep, in such manner as may be
specified by the appropriate development order,
a register containing such information as may
be specified in the said development order with
respect to applications for permission made to
the Minister or planning authority, including
information as to the manner in which such
applications have been dealt with; and every
such register shall be made available for
inspection by the public during normal hours of
official business at such place as the Minister
may direct.
An application for planning permission must be filed in the
prescribed manner, accompanied by prescribed plans and
drawings.18 On receipt of the application, the planning authority
normally consults other authorities so as to ensure that the
proposed development does not violate public health and road
traffic laws.19
Any person who proposes to carry out any operation on land
or make any change in the use of land or buildings who wishes
to have it determined whether the carrying out of those
operations or the making of that change in the use of the land or
building would constitute or involve development within the
meaning of the Act and if so, whether an application for
permission in respect thereof is required under the Act, may
apply to the Minister or planning authority as the case may be to
determine that question.20
18.8 Additional Provisions for Appeal to the Tribunal
Section 29 provides for additional provisions for Appeal to the

Tribunal. This provision is in addition to section 11 (1), excerpted
above under section 18.5, which provides for appeals to the
Tribunal. The section provides that:
(1) Where application is made under this Part to

the Minister or planning authority to whom
functions have been delegated under section
twenty-four for permission to develop or
subdivide land, or for any approval of that
planning authority required under a development
order or subdivision order, and that permission
or approval is refused by the Minister or
planning authority, or is granted subject to
conditions, then, if the applicant is aggrieved by
the decision, he may, within twenty-eight days
from the receipt of notification of the decision
or such longer period as the Tribunal in writing
may agree, and in the manner prescribed, appeal
to the Tribunal.
18
Town and Country Planning (application for planning permission) Regulations,1962 as amended.
19
Town and Country Planning Development Order, paragraph 9.
20
Ibid., paragraph 7.
(2) Any person, other than an applicant, or any local

or township authority who is dissatisfied with
any decision made by the Minister or a planning
authority to whom functions have been
delegated under section twenty-four in
connection with an application for permission
to develop or subdivide land, may, within twenty-
eight days from the making of such decision or
such longer period as the Tribunal in writing
may agree, and in the manner prescribed, appeal
to the Tribunal.
(3) Notwithstanding the provisions of subsection
(1) or (2), the Tribunal shall not be required to
entertain an appeal under the said subsection
(1) or (2) in respect of the determination of an
application for permission to develop or
subdivide land-
(a) if it appears to the President or the Vice-
President of the Tribunal that permission
for that development or subdivision could
not have been granted otherwise than
subject to the conditions imposed, having
regard to the provisions of section twenty-
five and of the appropriate development
order or subdivision order and to any
directions given under such order; or
(b) if the Minister has certified at the time of
making the decision, or, if the decision is
that of a planning authority to whom
functions have been delegated under
section twenty-four, the Minister has
certified, within seven days of the making
of such decision, that such decision is in
the national interest.
18.9 The Revocation and Modification of Planning Permission

by Minister
Section 30 (1) empowers the Minister to revoke and modify

planning permission on certain grounds. The section provides
that:
(1) Subject to the provisions of this section, if it
appears to the Minister or planning authority to
whom functions have been delegated under
section twenty-four that it is expedient, having
regard to the structure plan or local plan,
approved structure plan or local plan and to any
other material considerations, that any
permission to develop or subdivide land granted
by a development or subdivision order or on an
application made in that behalf under this Part
should be revoked or modified, he may by order
revoke or modify the permission to such extent
as appears to him to be expedient as aforesaid.
18.10 Enforcement of Planning Control: Enforcement Notice
Section 31 deals with enforcement of planning control. The

(1) If it appears to the Minister or planning authority

to whom functions have been delegated under
section twenty-four that any development or
subdivision of land has been carried out after
the appointed day without the grant of
permission required in that behalf under this
Part, or that any conditions subject to which
such permission was granted in respect of any
development or subdivision have not been
complied with, then the Minister or planning
authority may, within four years of such
development being carried out, or, in case of
non-compliance with a condition, within four
years after the date of the alleged failure to
comply with it, if he considers it expedient so to
do having regard to the provisions of the
appropriate structure plan or local plan or
approved structure plan or local plan, if any,
and to any other material considerations, serve
on the owner and occupier of the land a notice
(hereinafter called an enforcement notice)
under this section.
(2) If it appears to the Minister or planning authority

to whom functions have been delegated under
section twenty-four that-
(a) any use of land should be discontinued or
that any conditions should be imposed on
the continuance thereof; or
(b) that any buildings or works should be
altered or removed; then the Minister or
planning authority may by an enforcement
notice served on the owner and occupier
require the discontinuance of that use, or
impose such conditions as may be
specified in that notice on the continuance
thereof or require such steps as may be
specified to be taken for the alteration or
removal of the building or works, as the
case may be:
Provided that no such enforcement notice shall
be served on an owner or occupier by a planning
authority, other than any authority specified in
the First Schedule, unless and until the Minister
shall have approved such enforcement notice.
Section 32 provides for supplementary provisions as to

enforcement. The section provides that:
(1) If within the period specified in an enforcement

notice made under subsection (1) of section
thirty-one, or within such extended period as
the Minister or planning authority to whom
functions have been delegated under section
twenty-four may allow, any steps required by
the enforcement notice to be taken (other than
the discontinuance of any use of land) have not
been taken, the Minister or planning authority
may enter on the land and take those steps,
and may recover as a civil debt in any court of
competent jurisdiction from the person who is
then the owner of the land any expenses
reasonably incurred by the Minister or planning
authority in that behalf; and if that person,
having been entitled to appeal to the Tribunal,
failed to make such an appeal, he shall not be
entitled in proceedings under this subsection to
dispute the validity of the action taken by the
Minister or planning authority upon any ground
that could have been raised by such an appeal.
(2) Where, by virtue of an enforcement notice, any
use of land is required to be discontinued, or
any conditions are required to be complied with
in respect of any use of land or in respect of
the carrying out of any operations thereon, then
if any person, without the grant of permission
in that behalf under this Part, uses the land or
causes or permits the land to be used, or carries
out or causes or permits to be carried out those
operations, in contravention of the enforcement
notice, he shall be guilty of an offence and liable
on summary conviction to a fine not exceeding
fifteen thousand penalty units and, in case of a
continuing offence, to a further fine not
exceeding one hundred and fifty penalty units
for every day after the first day during which
the use is so continued.
18.11 Compensation for Refusal or Conditional Grant of

Planning Permission
Part VI or sections 34-39, deals with compensation for refusal

of or conditional grant of planning permission.
Section 34 defines ‘planning decision’ to mean:
in the case of an application for permission made

under part V, a refusal by the Minister or Planning
authority to whom functions have been delegated
under section 24 of that permission, or grant thereof
by the Minister or planning authority subject to
conditions, or a notice served under the provisions
of subsection (2) of section 31
Section 35 deals with compensation for planning decision. The

(1) If, on a claim being made to the Minister or

planning authority to whom functions have been
delegated under section twenty-four, it is shown

that, as a result of a planning decision involving
a refusal of permission or a grant thereof subject
to conditions, the value of the interest of any
person in the land to which the planning decision
relates is less than it would have been if the
permission had been granted or had been
granted unconditionally, then the Minister or
planning authority, as the case may be, shall,
subject to the provisions of this Part, pay to that
person compensation of an amount equal to the
difference.
(2) Where an order is made under subsection (2)
of section thirty-one requiring any use of land
to be discontinued or imposing conditions on the
continuance thereof, or requiring any buildings
or works on land to be altered or removed, then
if, on a claim made to the Minister or the
planning authority, as the case may be, it is
shown that any person has suffered damage in
consequence of the order by the depreciation
of any interest in the land to which he is entitled
or by being disturbed in his enjoyment of the
land, the Minister or planning authority shall pay
to that person compensation in respect of that
damage.
(3) In determining for the purposes of subsection
(1) to what extent, if any, the value of any
interest in land is less than it would have been
if the permission therein referred to had been
granted or had been granted unconditionally, it
shall be assumed that any subsequent application
for permission in respect of the land would be
determined in the same way, except that if, on
the refusal of permission for the development
in respect of which the application is made, the
Minister or planning authority undertakes to
grant permission for any other development of
the land in the event of an application being
made in that behalf, regard shall be had to the
undertaking in determining the matter aforesaid.
Section 36 deals with cases where no compensation is payable
while section 37 deals with cases where no compensation is
payable if other development is permitted.
18.12 Acquisition of Land
Part VII of the Act, covering sections 40 – 43, deals with

acquisition of land. Section 40 of the Act provides that:
Where any land is required to be included in a

structure plan or local plan or approved structure
plan or approved local plan the Minister may
recommend to the President that the Land may be
acquired by the President in accordance with the
Lands Acquisition Act.
18.13 Power to Hold or Cause the Holding of Public Inquiries
Section 49 (1) empowers the Minister for the purposes of

executing his functions under the Act to hold or cause the holding
of public inquiries. The section provides that:
(1) For the purpose of the execution of his functions

under this Act, the Minister may hold or cause
to be held such public inquiries as he may deem
necessary, and may for that purpose-
(a) appoint any person to conduct a public
inquiry and to report thereon to him in such
manner as he may direct;
(b) detail the terms of reference of such public
inquiry.
(2) The provisions of sections twelve and thirteen
shall apply, mutatis mutandis, to any such public
inquiry, and the person appointed to conduct a
public inquiry may exercise all or any of the
powers conferred on the President or the Vice-
President of the Tribunal or on the Tribunal by
the said sections.
18.14 Building Control: Local Government Act and Public

Health Act
Local Authorities have powers under the Local Government

Act21 and the Public Health Act22 to control the erection of
buildings and to control the demolition and removal of buildings
which do not conform to approved plans or are a danger to
public health or safety.
18.14.1 The Local Government Act
Section 61 of the Local Government Act provides that a local

authority may discharge all or any of the functions set out in the
second schedule to the Act. The second schedule provides the
functions of a Council. Paragraph 29 to the schedule provides
as one of the functions of a Council to be:
To prohibit and control the development and use of

land and buildings and the erection of buildings, in
the interests of public health, public safety, and the
proper and orderly development of the area of the
council.
Paragraph 30 further provides that:
To control the demolition and removal of buildings

and to require the altering, demolition and removal
of buildings which-
(a) do not conform to plans and specifications in
respect thereof approved by the council; and
or
(b) are a danger to public health or public safety.
18.14.2 The Public Health Act: The Public Health (Building)

Regulations
The objective of the Public Health Act is to provide for the

prevention and suppression of diseases and generally to regulate
all matters connected with public health in Zambia.23 Section
75 of the Act empowers the Minister by Statutory Instrument to
21
22
23
See Preamble to Chapter 295 of the Laws of Zambia.
make regulations that confer powers and impose duties in
connection with the carrying out and enforcement thereof on
local authorities, owners and others as to, inter alia, the
construction of buildings, the provisions of proper lighting and
ventilation and the prevention of overcrowding. Pursuant to this
section, as well as pursuant to section 114 of the Act, the Minister
has by statutory instruments promulgated the Public Health
(Building) Regulations.24
Any person proposing to erect a building within local authority
areas must submit an application for a building permit to the
relevant local authority, furnishing them with drawings and other
documents.
Regulation 5 (1) of the Public Health (Building Regulations)
requires prior permission before erecting any building.
The regulation provides:
(1) No person shall erect or begin to erect any

building until he has-
(a) Made an application to the Local
Authority in Form 1 in the Schedule, to
be obtained from the Local Authority;
(b) Furnished the Local Authority with the
drawings and other documents specified
in the following regulations;
(c) Obtained from the Local Authority a
written permit, to be called a “building
permit”, to erect the building, together
with a signed copy of the plan approved
by the Local Authority, as hereinafter
provided. Such permit shall be in Form 2
in the Schedule and shall be signed by
the Local Authority or its authorised agent
and shall entitle the holder to erect the
building in accordance with such
approved plan and subject to all conditions
imposed by these Regulations. Any
subsequent modification or alteration that
it is proposed or necessary to make in
such approved plan shall be submitted to
the Local Authority for approval in the
same manner as the original plan, and no
such modification or alteration shall be
made in the construction of the building
24
See the Regulations under the Act.
until it has been approved by the Local

Authority and the particulars thereof
endorsed on the original building permit
and signed plan.
(2) The person making application for the approval
of plans and specifications shall lodge these
with a fee according to a scale fixed by the
Local Authority and approved by the Minister.
Regulation 6 (1) deals with plans and the contents thereof. The
regulation provides that:
(1) Every person who intends to erect a building

shall, except where otherwise provided, send
or deliver to the Local Authority two copies
of a plan of each floor and sections of each
storey, floor and roof of the building and
elevations drawn in a clear and intelligible
manner, to a scale of not less than 2.54
centimetres to every 2.4384 metres. He shall
show upon the plans, sections and elevations
the following particulars;
(a) The position, form and dimensions of the
foundations, walls, floors, roofs, rooms,
chimneys, and the several parts of the
building including outside kitchen,
servants’ quarters, stables, garages, etc.,
in such detail and to such an extent as
may be necessary to show that the
buildings comply with any of the
regulations which apply to them;
(b) The form and dimensions of any water
closet, earth closet, privy or cesspool to
be constructed in connection with the
building;
(c) The level of the site of the building and
the level of the lowest floor of the building
and the level of any street adjoining the
curtilage of the building in relation to one
another and above some known datum;
(d) Any plans, drawings, documents or
information that the Local Authority may
require;
(e) The truncation of any corner formed by
the intersection of any street and the
setting back or adaptation of the proposed
building to conform with the requirements
of these Regulations.
Regulation 8 (1) provides the grounds on which plans may be

disapproved by the Local Authority. The regulation provides that:
(1) The Local Authority may disapprove of plans

or applications to erect a building or machinery
on any of the following grounds:
(a) That they show a contravention of these
regulations or of any rules or regulations
for the time being in force in the township;
(b) That the system of drainage of the proposed
building or of the plot or sub-plot upon which
the building is to stand is not, in the opinion
of the Local Authority, satisfactory;
(c) That sufficient facilities for access of
sanitary carts are not, in the opinion of the
Local Authority, provided;
(d) That, in the case of a building to be erected
on a plot on which a building or buildings
already stand, no scheme of plot
subdivision has been sanctioned by the
Government, or that such building is not in
conformity with a scheme of plot
subdivision which has been so sanctioned;
(e) That latrine accommodation and, where
considered necessary by the Local
Authority, servants’ accommodation are not
adequately provided for;
(f) That the site upon which it is proposed to
build is, in the opinion of the Medical
Officer of Health, or, if no such officer is
available, of the Local Authority, unfit for
human habitation;
(g) That they do not adequately provide for
the strength and stability of the building,
nor for the sanitary requirements thereof;
(h) That the site of any of the proposed
buildings on the plans is such that the
erection of such buildings would contravene

or render abortive any town planning
scheme or proposed town planning scheme
for the township;
(i) That the plan is not accompanied by an
undertaking in writing by the person
submitting such plan that the building
operations will be supervised by a qualified
architect or other competent person
approved by the Local Authority so as to
ensure that the building complies with the
plan.
A building permit enables the holder to erect the building in

accordance with the approved plan and subject to the conditions
imposed, if any. Any subsequent change or modification needs
the approval of the local authority. If a building is erected without
permission or erected in contravention of the conditions attached
to the permit, the local authority may take enforcement action
by requiring the owner to demolish and remove the building or
alter work carried out in contravention of the regulations.
18.15 Case Law
(a) A person who wishes to be heard before the Town and

Country Planning Tribunal on an appeal must show that the
decision appealed against affects land in which he has an
interest which is certain. It is not part of the function of the
Town and Country Planning legislation to protect established
businesses from commercial competition
BALL v. WESTERN PLANNING AUTHORITY (1966) ZR 1

[TCPT]
[The facts of the case appear from the Judgment of the Tribunal
delivered by BLAGDEN, PRESIDENT]
This is an appeal to the Town and Country Planning Tribunal

pursuant to the provisions of ss. 9 (1)(a) and 27 (1) of the Town
and Country Planning Ordinance (hereinafter referred to as ‘the
Ordinance’) prior to its amendment by the Town and Country
Planning (Amendment) Ordinance, No. 28 of 1964.
The appellant is the tenant of Farm No. 2715, Mindolo small-
holdings, Kitwe, under a 99-year lease from the Crown dated
25th August, 1959. By the terms of that lease the appellant
covenanted to use the land for agricultural purposes only, but by
a supplemental indenture dated the 28th December, 1959, the
Crown granted the appellant the right to erect and run a trading
store on the farm, subject to his acquiring the necessary trading
licence.
The trading store commenced business in December 1959.
On 6th February, 1962, the appellant acquired what is known as
a ‘bottle store licence’ for the store, that is to say, a licence to
sell liquor at the store for consumption off the premises.
Subsequently, the appellant became desirous of extending his
business activities on the farm to include provision for the sale
and consumption of liquor on the premises.
The smallholdings area in which the appellant’s farm lies is
not subject to any development plan, but on 7th December, 1962,
it became an area in respect of which there was an order made
under the Ordinance to prepare a development plan, by virtue
of the appointment of the Copperbelt Planning Authority to
prepare a development plan for parts of the Western Province
which included that area (see G.N. No. 395 of 1962). In
accordance with the provisions of sub-sections (1) and (2)(a) of
s. 20 of the Ordinance, it was necessary for the appellant to
obtain permission for any ‘development’ he proposed to carry
out on his farm. The authority empowered to give him that
permission was the respondent, the Western Planning Authority,
which had been appointed on the 16th November, 1962 (see
Government Notices 350 and 355 of 1962).
On the 2nd November, 1963, the appellant submitted an
application to the respondent to ‘develop’ his land. He described
the proposed development as ‘Establishment of Bar Lounge on
a portion of Farm 2715 measuring 300 ft x 250 ft as per plans
attached’. The plans show that what was proposed was the
construction of a building some 60 ft x 40 ft on the appellant’s
farm to be sited eighty yards or so from the existing trading
store, together with a veranda and garden, and provision for a
car park for thirty-nine cars. On his form of application the
appellant described the existing use of his land as ‘agricultural
smallholding with a trading store thereon’.
The respondent advertised the appellant’s application in the
local press and in the Government Gazette and invited persons
to submit objections to it. The respondent also consulted the
Kitwe Municipal Council regarding the appellant’s application.

On or about 13th February, 1964, the respondent conducted a
hearing in public which was attended by a representative of the
Kitwe Municipal Council and by some of the appellant’s
neighbours on the Mindolo smallholdings. Mr Barlow, the
respondent’s executive officer, also attended this hearing. A
number of those attending the hearing spoke. Mr Barlow also
spoke and answered questions which were put to him.
Subsequently when the respondent resolved into committee, Mr
Barlow accompanied the members.
The respondent refused the appellant’s application on grounds
which were stated in the Notification of Refusal of Planning
Permission in these terms:
1. The establishment of a Bar-Lounge in this area

would be prejudicial to the amenities of the area
which is at present rural in character consisting
predominantly of secluded detached houses in
residential/agricultural smallholdings.
2. Possible traffic hazard arising from the uncertain
position regarding the maintenance and possible
future re-construction of the existing established
access road to the south of Farm 2715,
particularly as regards the Kankonshi Streams
crossing and that portion of the road outside the
jurisdiction of this Authority but falling within the
Kitwe Municipal Area.
On the 10 March, 1964, the appellant lodged his appeal against

the respondent’s rejection of his application, the respondent then
lodged his case and the Municipal Council, Kitwe, gave notice
of intention to be heard as an objector at the hearing of the
appeal. The Council’s right to be heard was challenged by Mr
Richmond Smith for the appellant and this matter was treated
as a preliminary issue. Section 9 (1)(b) of the Ordinance was at
the material time expressed in these terms:
9. (1) Without prejudice to the provisions of

section twenty-eight and Part VI of this
Ordinance -
(b) any person whose interest in any land may

be affected by any decision on an appeal by
a Tribunal shall have the right to appear and
be heard on the hearing of any such appeal.
It was for the Council to show that they had such an interest as
would bring them within the ambit of this provision. That interest
was not confined to the appellant’s land; it could be interest in
‘any land’.
Mr Millward for the Council argued that the Council had
affectible interests in both the appellant’s land and their own
municipal land. The interest in the appellant’s land which the
Council claimed was based on the fact that the Council was
intending to apply for permission to extend its boundaries. This
project had been under consideration since 1958 and on 5th
June, 1964, the council caused an advertisement to appear in
the Government Gazette (Advertisement No. 1186, on page 422)
and in other media, whereby it gave notice of intention to apply
to extend its boundaries to include an area of approximately 937
acres to the north-west of its existing boundaries so as to provide
further industrial land which could be supplied with railway siding
facilities. The area to be added did not itself include the Mindolo
smallholdings but lay a distance of upwards of a mile to the
north-west thereof. But, Mr Millward argued, where an industrial
expansion takes place, a further area amounting to approximately
three times the area of that expansion will be required for
residential accommodation; and the likelihood was that Mindolo
smallholdings would have to form part of that extra residential
area. The Council, he submitted, thus had an interest in the
Mindolo smallholdings area and in particular an interest to see
that no development took place within that area which might
prejudice its suitability or its value as a potential residential area.
I rejected that argument. In my view the interest to be shown
must be an interest which is certain. It may be a present or a
future or even a contingent interest. But it must be certain in the
sense that it is ascertained. The interest here is purely
speculative. It amounted to no more than that an application
might be made by the Council to extend its boundaries so as to
include the area of Mindolo smallholdings. That, in my view, did
not constitute an interest in the appellant’s land sufficient to
entitle the Council to be heard on this appeal.
The same reasoning also disposes of the further argument
advanced by Mr Millward to show that the Council had an
affectible interest in the appellant’s land, namely that if and when
the Council came to extend the municipal boundaries so as to
embrace all the Mindolo smallholdings, it might have to pay an
increased compensation figure if the appellant was allowed to
enhance the value of his farm by putting up a bar lounge on it.
With regard to the Council’s own land, Mr Millward argued

that there were two interests which were likely to be affected
by the decision in this appeal. First, he said that if Mr Ball’s
project were allowed, a need would arise for police supervision
of the bar lounge and the police personnel for that could only be
found from Kitwe with resultant depletion of the policing
resources in the municipality. I very much doubt if that could be
regarded as an interest in land. The interest relates not to land
but to services, and in particular to police services. But in any
case, it is again a matter of speculation. There was no evidence
adduced before us to support the contention; indeed the one
witness who was called on this issue, the Kitwe Deputy Town
Clerk, said that he thought that if police supervision at the
proposed bar lounge were required the personnel would be drawn
from Garneton.
The second affectible interest contended for by Mr Millward
related to the possibility of competition between the appellant’s
bar lounge and the Council’s own institutions of similar character
which it would be installing within the municipal boundaries in
accordance with the Government’s policy to substitute
establishments of this nature for existing beer halls. This was a
proposition which, I think, required some evidence to support it.
Accepting that the Council had an interest in the financially
successful running of bar lounges on its own municipal land,
would or could the presence of appellant’s proposed bar lounge
affect it? The evidence of Mr Cowley, the Council’s Deputy
Town Clerk, disclosed that the Kitwe programme envisaged the
erection of about twenty-three bar lounges, all in presumably
high-density areas. Would the presence of another bar lounge
one mile from the municipal boundaries in a largely rural area
have any appreciable effect on the twenty-three? It is difficult
to see how it could, and there was no real evidence that it would
- only the bare suggestion that it might. I accept that the Council
has an interest in bar lounges on its Municipal land, but in the
circumstances of this case I am not satisfied that its interest
might be affected by a decision of the Tribunal that the appellant
should be allowed to put up his bar lounge. I might add that even
if the Council had succeeded in showing an affectible interest
here so as to entitle it to be heard, the possible effect contended
for - namely reduction of trading profits because of competition
- would not be a proper planning consideration to take into
account in deciding whether or not to grant planning permission.
In Heap, Encyclopaedia of Planning Law and Practice, Vol.
2 (which for convenience I shall refer to hereinafter as ‘Heap,
Vol. 2’) there occurs this passage at para. 5-2198 on page 5861:
Adequacy of existing facilities: competition

between shops.
The question whether the adequacy of existing

facilities should be taken into account in considering
an application for permission to establish a
particular business has chiefly arisen in relation to
petrol filling stations, but the same principles appear
to be applicable in relation to shops and other kinds
of development.
At para. 5-2050 on page 5740 reference is made to a decision

reported in 1954 J.P.L. 386 wherein the Minister of Housing
and Local Government in England said that he ‘takes the view
that it is no part of his function, or of that of the planning authority,
to safeguard established businesses from commercial
competition’.
There was a further suggestion made by Mr Cowley in his
evidence that if appellant’s proposal was allowed it would result
in increased traffic on the access road from Chimwemwe and
this would add to the Council’s responsibilities in respect of that
portion of the access road which lay within Chimwemwe and
the municipal boundaries. But again there was no real evidence
to support this suggestion.
For all these reasons I came to the conclusion that the Council
was not a person whose interest in any land might be affected
by any decision this Tribunal might come to, and in consequence
was not entitled to be heard on this appeal.
We come now to the consideration of the appeal itself. Both
Mr Richmond-Smith for the appellant and Mr Johnson for the
respondent have, in the course of their arguments, raised
questions regarding the functions of the Tribunal in hearing
appeals: whether these functions are administrative or judicial
or a mixture of both; the approach which the Tribunal should
adopt in hearing appeals; and where the onus lies in an appeal to
the Tribunal. Some of these questions have been considered in
earlier decisions of the Tribunal. I think it would be of assistance
to summarise and re-state the effect of these together with such
questions raised here as have not been previously dealt with.
I will take first the question of onus. It is clear that, initially,

there is an onus on the appellant to show that the decision he is
appealing against was wrong. This he can do in a number of
ways, notably:
(1) By showing that the Planning Authority’s decision was
perverse, or unreasonable to the extent of being
insupportable having regard to the evidential material
before it, or that it was founded upon some mistake.
(2) By showing that the Planning Authority, in coming to
its decision, erred in law - that is to say that it
misinterpreted the provisions of any legislation regarding
planning or any development plan or Order which it
was bound to follow.
(3) Generally, by showing that the Planning Authority either
failed to take into consideration matters which it ought
to have considered or took into consideration matters
which it ought not to have considered.
Next, as to the approach the Tribunal should adopt in hearing
planning appeals, this must be ascertained primarily from the
legislation which brought the Tribunal into being and prescribed
the conditions under which appeals could be lodged to it. That
legislation is the Ordinance, and, taking into account now the
amendments introduced by the Town and Country Planning
(Amendment) Ordinance No. 28 of 1964, which came into force
on 3rd July, 1964, the sections which particularly affect the
position are ss 5, 9 (1) (c) and 27 (1) and (2).
Section 5 establishes the Tribunal and formally confers upon
it the jurisdiction, power and authority’ which are provided by
the Ordinance and regulations made thereunder.
Section 9 (1) (c) provides, inter alia, that without prejudice
to certain specified portions of the Ordinance, ‘the Tribunal shall
hear and determine the matter of the appeal and may make
such order therein in addition to, or in substitution for the matter
appealed against as it thinks fit . . .’
Sections 27 (1) and (2) prescribe the rights of appeal to the
Tribunal. There are other rights of appeal prescribed in this
Ordinance - notably in s. 29 (6) - but these relate to special
cases which are not relevant here.
Section 27 (1) provides that: ‘Where application is made . . .
to the . . . planning authority . . . for permission to develop or
sub-divide land . . . and that permission or approval is refused
by the . . . planning authority, or is granted subject to conditions,
then if the applicant is aggrieved by the decision, he may . . .
appeal to the Tribunal’.
Section 27 (2) provides that: ‘Any person, other than an
applicant or any local or township authority, who is dissatisfied
with any decision made by . . . the planning authority in
connection with an application for permission to develop or sub-
divide land may . . . appeal to the Tribunal . . .’
The effect of these provisions is to give a right of appeal to
those persons to whom they apply in virtually unqualified terms.
The only criterion is to be ‘aggrieved’ or ‘dissatisfied’.
Now the only mandate which is laid upon the Tribunal in the
hearing of appeals is that enacted in s. 9 (1) (c) of the Ordinance
to which I have already referred, viz.: to ‘hear and determine
the matter of the appeal’. In the exercise of that function, the
Tribunal is entitled under the provisions of s.10 to order the
attendance of witnesses to give evidence or produce documents,
to take evidence on oath, and in addition to ‘make such other
investigations as it may deem necessary in assisting it to come
to a decision regarding any matter before it’. These are wide
powers and transcend those conferred on any Appeal Court.
The Tribunal is not a court; nor is a Planning Authority, when it
is considering an application a court. But whereas the Planning
Authority’s functions are primarily administrative, the Tribunal’s
are primarily judicial and although the Tribunal is not a court, it is
at least a quasi-judicial body, and as such is under an obligation
to discharge its functions judicially and in accordance with the
rules of natural justice; and the wide powers which it has
conferred upon it by s. 10 of the Ordinance must be exercised
subject to these overriding principles.
As between courts, the conferring of a right of appeal in
unqualified terms points to the appeal being by way of re-hearing
- see per Tredgold, CJ in Chiteta v. R.25
The Tribunal too can, and normally will, proceed by way of
rehearing. But it is under no obligation to do so and whether a
re-hearing takes place or not will depend primarily upon the
wishes of the parties. The parties are bound by their pleadings -
that is to say by the cases which they have lodged and served in
accordance with regulations 4, 7 and 8 of the Town and Country
Planning (Appeals) Regulations - and may only go outside them
with the leave of the Tribunal. It may be that the nature of the
pleadings precludes the necessity for any re-hearing. Indeed
the parties can agree that the appeal be determined summarily
without even any appearance - see regulation 10 of the Town
and Country Planning (Appeals) Regulations.
25
1960 R & N 199.
Again, if the planning authority has kept an adequate record

of the proceedings before it, it may be that there can be a re-
hearing on that record. But it is always open to the parties or
any one of them virtually to insist on a complete re-hearing, for
although the Ordinance does not specifically empower any party
to call witnesses but confers this only on the Tribunal (see s.
10), nevertheless by regulation 11 (1) of the Town and Country
Planning (Appeals) Regulations, the Tribunal is obliged to afford
each of the parties ‘a full opportunity of being heard and of
calling such evidence and producing such documents at the
hearing of the appeal as may be deemed relevant and material’.
To summarise the foregoing, the position in my view is that,
whilst an appeal to the Tribunal is basically conducted by way
of re-hearing, and will ordinarily be so conducted, a re-hearing
is not obligatory. How the appeal is heard will largely depend
upon the election of the parties as to the mode of presentation
of their cases; and it will also depend upon the views of the
Tribunal in any particular case having regard to the material
which is made available to it and upon which it must adjudicate
in that case.
I now come to the consideration of the merits of this appeal.
A number of points were raised by the appellant in his case, and
to a certain extent in argument, relating to the hearing of his
original application by the respondent and matters preliminary
thereto. They were of a procedural nature and were directed to
showing that in some respects the respondent had acted
improperly or at any rate unfairly to the appellant in conducting
that hearing. The resolution of these questions, however, does
not form any part of our ratio decidendi in this case and in
consequence we say no more about them than that, having regard
to the fact that the respondent, as a planning authority, is an
administrative body discharging administrative functions and not
a judicial body discharging judicial functions, we can see nothing
wrong in the particular procedure they adopted.
Mr Richmond-Smith, for the appellant, was also at some pains
to argue before us that the appellant’s proposals did not constitute
any change in the use of his land. As to this there is no need for
us to say more than that we find this contention quite
unsupportable...
In the final result we have come to the conclusion that this appeal
should be allowed and the appellant’s application granted. But
the Tribunal is obliged, in accordance with the provisions of s. 9
(1)(d) of the Ordinance, to afford the Minister of Lands and
Works or the respondent Planning Authority, an opportunity of
making representations as to conditions or requirements which
they consider ought to be included in any order which the Tribunal
may make. We accordingly make no order, but copies of our
decision will be served on the Minister of Lands and Works and
the parties, so as to afford the prescribed opportunity. Any
representations to be made should be submitted in writing to the
Secretary of the Tribunal together with copies for service on
the appellant. The appellant in his turn will be afforded an
opportunity of replying to any such representations as may be
submitted...
Before the amendment to section 27 of the Town and Country

Planning Act (now section 29) only applicants for the
development or subdivision of land had the right to appeal against
an unfavourable decision by the Minister or Planning Authority
but objectors to the application did not. This can be discerned
from the case of Motor Traders Association of Central Africa
and Others v. Municipal Council of Mufulira.26 In this case
the respondent Council and Planning authority raised a
preliminary point that the Tribunal had no jurisdiction to entertain
the appeal because none of the appellants had the right of appeal.
The appellants were originally all objectors to the application
made by Messrs Peat and Sons Limited for the development of
Plot 465, Parkers Avenue, Mufulira as a Petrol filling and service
station. It was contended for the respondent that section 27 (1)
of the Ordinance limited the right of appeal against decisions on
applications for the development or subdivision of land to
aggrieved applicants, and the appellants were not applicants,
they were objectors. The Court upheld the respondents
preliminary objection after considering the provisions of section
9 (1)(a) and 27 (1) of the Ordinance.
This decision was made before Section 27 of the Town and
Country Planning Act (now Section 29) was amended. Section
29 (2) of the Act now provides:
(2) Any person, other than an applicant, or any
local or township authority who is dissatisfied with
any decision made by the Minister or a planning
26
(1967) ZR 3 [TCPT].
authority to whom functions have been delegated

under section twenty-four in connection with an
application for permission to develop or subdivide
land, may, within twenty-eight days from the
making of such decision or such longer period as
the Tribunal in writing may agree, and in the manner
prescribed, appeal to the Tribunal.
Had the amendment been effected at the time the matter was
decided by the Tribunal, the objectors in the above case would
have no doubt fallen under the provisions of section 29 (2) of
the Act and hence the Tribunal would have had jurisdiction to
entertain the matter.
(b) It is not necessary to apply for planning permission to

change the use of land unless the proposed use amounts to
a ‘development’, which is defined as the carrying out of
any building or making of material changes in the use of
land or existing buildings
Papenfus v. The Lusaka City Council (1967) ZR 3 [TCPT]]
delivered by BLAGDEN, PRESIDENT]
The appellant in this case, being a person dissatisfied with a

decision of the respondent council in connection with an
application regarding her use of Stand 34B, Great East Road,
Lusaka, has appealed to the Town and Country Planning Tribunal,
pursuant to the provisions of sections 9 (1) and 27 of the Town
and Country Planning Ordinance, Cap. 123 (hereinafter referred
to as ‘the Ordinance’). The respondent council is a planning
authority within the meaning of section 2 of the Ordinance, to
whom the functions of the Minister entrusted with the
administration of the Ordinance have been delegated under
section 22.
The appeal is concerned, not only with Stand No. 34B, but
also with the adjacent Stand No. 34A. These two premises fall
in an area which, under the provisions of the Lusaka Town
Planning Varying Scheme (hereinafter referred to as ‘the
Scheme’), which was approved by the Governor-in-Council on
16th September, 1958 - see Government Notice No. 8 of 1959,
dated 30th December, 1958 - falls within ‘Use Zone II - General
Residential’. (See also Map No. 3 which, by section 3 of the
Scheme, is deemed to be part of it and to be read as one with it.)
Part III of the Scheme deals with ‘Erection and use of
Buildings and use of Land’. Section 9, which deals with Buildings,
includes in sub section (1), Table B. Table B sets out, inter alia,
the purposes for which buildings may be used in the various use
zones and also lists those purposes for which such buildings
may be used only with the consent of the responsible authority.
In respect of ‘Use Zone II - General Residential’, Table B
provides that buildings therein may be used as ‘Dwelling Houses
and Residential Buildings’, other than licensed premises; and
the purposes for which such buildings may be used only with
the consent of the responsible authority include ‘Educational
Buildings’. By section 2 of the Scheme, ‘Educational building’ is
defined as meaning, inter alia, ‘a building designed for use as a
school’ nursery school, kindergarten, creche’.
The previous history relating to these premises is shortly as
follows: Stand 34B together with the adjacent Stand 34A were
formerly both owned by a Mrs Gill. Mrs Gill resided in a house
on Stand 34A and operated a day nursery on Stand 34B. Records
produced largely from the respondent Council show that on the
17th January, 1958, Mrs Gill wrote to the respondent council
applying for permission to conduct a day nursery on Stand 34B.
This was clearly an application made under the Scheme (although
this had not at that date been approved by the Government) as
evidenced by the advertisements which preceded it one of which
appeared in the Northern Rhodesia Government Gazette of 17th
January, 1958, as Advertisement No. 93, on page 40.
On the 1st May, 1958, Mrs Gill made a further application to
the Council. This was for the registration of these premises as a
day nursery under section 6 (1) of the Day Nurseries Ordinance,
1957, now Cap 194 of the Laws of Northern Rhodesia. Mrs
Gill’s first application was approved by the Council ‘from a town
planning point of view’, by letter dated 5th June, 1958. Her
application for registration under the Day Nurseries Ordinance
was granted by the respondent Council on the 16th July, 1958. It
was subject to the condition, amongst others, that the number of
children to be catered for should not exceed sixty, comprising
fifteen under one year; twenty between the ages of one to three
years; and twenty-five between the ages of three and seven
years. For this registration, Mrs Gill paid a fee of £15. The
nursery was known as the Longford Day Nursery.
The appellant took on employment in the nursery and worked

there for some two years. During 1962, Mrs Gill disposed of
both stands 34A and 34B. Stand 34B was acquired by the
appellant. On the 20th March, 1962, she requested the respondent
Council by letter to permit her ‘to take control of Longford Day
Nursery in the absence of Mrs Gill who is going away for some
time’. This was, of course, not an application for planning
permission: that had already been granted and remained attached
to the premises. It was, in effect, an application to transfer Mrs
Gill’s licence to run the nursery, granted under the Day Nurseries
Ordinance, to the appellant. But, by letter dated 12th April, 1962,
the respondent Council informed her that it was not possible to
transfer the licence from Mrs Gill and that her request would be
treated as a new application. The letter went on to inform her
that the Medical Officer of Health had recommended that the
day nursery be registered in her name subject to compliance
with the general conditions applicable to day nurseries and to
certain special conditions, one of which was expressed in these
terms:
that the number of children catered for must not

exceed 53 (under 1 year - 10; 1 to 3 years - 16; 3
to 7 years - 27).
Subsequently the respondent Council forwarded to the appellant

her Certificate of Registration and receipt for the re-registration
fee of ú15, which she had paid.
This, then, was the position in regard to Stand No. 34B at the
end of 1962. It is to be noted that contrary to assertions made
by and on behalf of the appellant, at no time was there any
licence in respect of Stand 34B to take in children over the age
of seven years.
Stand No. 34A was sold by Mrs Gill to the objector, Mrs
Gould. According to Mrs Gould the actual purchase was
completed in June, 1962. No evidence was adduced before us
that prior to the acquisition of these premises by Mrs Gould
there had ever been a licence or other authority to operate a
day nursery or similar institution there. It would appear however,
from the evidence given by Mrs Gould before us, that she had
definitely been given the impression that there had been some
such licence or permit. At any rate, on the 6th April, 1962, she
addressed a letter on the subject to the respondent council. The
original of this letter is not before us but the reply dated 12th
April, 1962, from the Town Clerk was in these terms:
Dear Madam,
Play Centre, Stand 34A, Lusaka
In reply to your letter dated 6th April, 1962,

there is no objection to your taking over from
Mrs. MHL. Gill the Play Centre at Stand 34A,
Lusaka, subject to your complying at all times
with the Public Health requirements of this
Council.
Yours faithfully,
Eric S. Dixon
Town Clerk
The terms of this letter, of course, clearly suggest that there

was already a play centre at 34A prior to Mrs Gould’s acquisition
of these premises. But that was not so.
The expression ‘Play Centre’ as used in this letter and in
other correspondence and in evidence and argument throughout
this case, requires some explanation. Under the Day Nurseries
Ordinance, section 2, a ‘day nursery’ is defined as meaning:
any premises where more than two children from

more than one household are received to be looked
after for reward for periods exceeding two
consecutive hours in any one day’, and a ‘child’ is
defined as meaning a person ‘who has not attained
the age of seven years’.
The term ‘Play Centre’ is not the subject of any statutory

definition. It is used in the context of this case purely as a
convenient term of art to describe what may loosely be described
as a non-residential nursery for children over the age of seven.
Such an establishment falls outside the ambit of the Day
Nurseries Ordinance.
On the 26th April, 1962, Messrs Christopher and Company,
on behalf of Mrs Gould, wrote to the respondent Council
enquiring whether the business of the play centre would be
allowed on Mrs Gould’s premises, or whether an application
would have to be made for variation of the Town Planning
Scheme. By their reply dated 1st May, 1962, the respondent
Council intimated that the approval for a nursery school applied
only to Stand No. 34B and that the proposal to establish a play
centre on Stand 34A would therefore have to be advertised and
considered by the Council. Advertisements were duly inserted

calling for objections to be lodged with the Town Clerk and the
applicant, by registered post not later than 12 noon on 11th April
1962. None were apparently received, and on the 12th July,
1962, Messrs Christopher and Company duly made application
to the Council on behalf of Mrs Gould to establish a children’s
play centre on Stand No. 34A, Great East Road, Lusaka, in
these terms:
to authorise the use of the above numbered stand

to be changed from residential to permit the carrying
on of a’ children’s play centre; the children to be
catered for to be of the age of 7 years and upwards;
the hours during which the centre will be open for
business will be between the hours of 7.30 a.m.
and 6.30 p.m..
On 30th July, 1962, the Council informed Messrs Christopher

and Company that it had resolved that, subject to Public Health
requirements being satisfied and to adequate fencing of the stand,
Mrs Gould’s application for the use of the stand for the
establishment of a children’s play centre was approved from a
town planning point of view.
The position at the end of 1962 regarding these two premises,
therefore, was as follows:
On Stand 34B the appellant had town planning permission to
run a day nursery and was running the Longford Day Nursery
there, which had been duly licensed and registered under the
Day Nurseries Ordinance, but her licence was subject to certain
conditions, and in particular she was precluded from entertaining
in that nursery any children above the age of seven years. Mrs
Gould, on Stand 34A, was running what may conveniently be
described as a play centre for children of seven years and above.
This was not registered as registration was not required under
the terms of any Ordinance, but it had been approved by the
Council from a town planning point of view.
On or about 18th January, 1963, the appellant received a
letter from the respondent Council of that date in which the
Town Clerk informed her that at an inspection of the Longford
Day Nursery on 14 January, 1963, it had been discovered that
four children over the age of seven years had been permitted to
attend the premises. The letter pointed out that this was a
contravention of one of the conditions attached to her certificate
of registration and requested her to take immediate steps to
remove these children from the nursery. The appellant was
apparently under the impression that she was entitled to have
these older children there. Evidence was indeed adduced before
us that in Mrs Gill’s time there had been quite a number of older
children in the nursery. But this would have been in breach of
the conditions attaching to the original registration of the Longford
Day Nursery in 1958 (see letter dated 16 July 1958, addressed
to Mrs Gill by the Town Clerk): and by taking in these older
children the appellant was contravening special condition (i) of
the conditions attached as Appendix I to the certificate of
registration of the nursery in her name dated 19 December 1962.
That particular condition had also been drawn to her attention
by the Town Clerk’s letter of 12th April, 1962.
To remedy the situation, and acting on advice, the appellant
made an application on or about 13th March, 1963, to establish
a play centre on Stand No. 34B. Her application was duly
advertised and objections were received from Mrs Gould and
from a neighbour, Mrs Galaun.
Her application was considered by the respondent Council
on the 18th April, 1963, and it was refused for reasons which
were set out in the Notification of Refusal of Planning Permission
dated 1st May, 1963, in these terms:
The said consent of this Authority to the use of the

land for the establishment of a Play Centre cannot
be approved under the Lusaka Development Plan,
because of the predominantly residential nature of
the neighbourhood and the nuisance that might be
caused thereby.
It is against this decision of the respondent Council that the

appellant now appeals to us. Apart from her case and that of
the respondent council, Mrs Gould has submitted to the Tribunal
a case in respect of her objection to the appellant’s application.
The objection lodged before the respondent Council by Mrs
Galaun has not been further pursued before the Tribunal.
The Tribunal has carefully considered the cases submitted,
together with the arguments and evidence adduced in support
of them, and has reluctantly come to the conclusion that, through
no personal fault of Mrs Papenfus’s, her application to the
respondent Council for planning permission to establish a play
centre on Stand 34B was misconceived and should have been
dismissed by the respondent Council for that reason.
The appellant only required Town Planning permission for
the use to which she wished to put the premises at Stand 34B if
that use amounted to ‘development’. Development is defined in
sections 2 and 20 of the Ordinance. The substantial part of this

definition which affects this case is expressed in section 20 in
these terms:
‘Development’ means the carrying out of any

building, rebuilding or other works or operations
on or under land, or the making of any material
changes in the use of land or buildings
No building operations were proposed here: at most what the

appellant was trying to do was to make a change in the use of
Stand 34B by opening her registered nursery there to children
over the age of seven years. In our view this could not be
regarded as a ‘material’ change in use.
Section 51 (2) (b) of the Ordinance empowers the Minister
entrusted with the administration of the Ordinance to make
regulations ‘defining the groups to which specific land and
building uses shall belong’. Under this provision, Town and
Country Planning (Use Groups) Regulations were made on 16th
November, 1962 (see Government Notice 357 of 1962).
Regulation 4 of these Regulations prescribes that:
(1) Where a building or land is used for a purpose

described in any group specified in the
Schedule to these Regulations, the use of such
building or land for any other purpose described
in the same group shall not be deemed for the
purposes of the Ordinance to involve
development.
(2) A use which is ordinarily incidental to and
included in any use specified in the Schedule
to these Regulations is not excluded from that
use as an incident thereto merely by reason of
its specification in the said Schedule as a
separate use.
Group 6 of the Schedule comprises: ‘Use as a creche, a day

nursery or a non-residential school for children.’
The running of the Longford Day Nursery on Stand 34B
constituted a use of those premises for a purpose specified in
Group 6 of the Schedule.
We have already expressed our view that the proposed
introduction of older children to this establishment did not amount
to a ‘material’ change in the use of those premises. Upon a true
construction of the nature of the appellant’s proposals, we are
further satisfied that the purpose she had in mind could properly
be regarded as an ‘other purpose described in the same group’
- namely, Group 6 - which covered the existing use she was
already making of the premises and in consequence fell into a
category of use which was not to ‘be deemed for the purpose
of the Ordinance to involve development’
The appellant required, accordingly, no planning permission,
and her application for planning permission should not have been
entertained, but dismissed in limine. The respondent Council did
dismiss her application, but on grounds which are not, in our
view, supported by the evidence. They were, however, right to
dismiss it and it follows that this appeal fails and must be
dismissed.
The fact that Mrs Papenfus did not and does not require
planning permission to take in older children at Stand 34B the
Longford Day Nursery is subject to the imposition of conditions
under section 7 (1)(a) of the Day Nurseries Ordinance, as to
the number and ages of the children who can be accepted there.
The age of the children is limited to seven years. If she takes
older children she is in breach of this condition and liable to
penalty under section 12 of the Day Nurseries Ordinance.
Now the Day Nurseries Ordinance is concerned with nursery
provision only for children under the age of seven years. But
there is no particular limitation on the conditions that may be
imposed, and conditions can be permissive as well as restrictive.
In an appropriate case we can see no reason why a day nursery
should not be permitted to take in a limited number of children
of over seven years of age when for example, such children
were the brothers or sisters of any of the younger children in
the nursery.
Mrs Papenfus would be entitled to make application to the
Council for a variation of the conditions attaching to the
registration of her nursery so as to allow this, and the Council
could make such variation, if any, as they thought fit under the
powers conferred on them in that behalf by section 7 (5) of the
Day Nurseries Ordinance.
We have considered the question of costs and we are
satisfied that the appropriate order in the special circumstances
of this appeal is that each party should pay his or her costs.
In conclusion, as this Tribunal is newly formed and this is the
first case we have heard, we would like to make two observations
regarding practice and procedure.
In the first place, it would be of great assistance to the
Tribunal, in adjudicating upon these appeals, if a fuller note of
the proceedings before the Town Planning Authority, forming
the subject matter of the appeal, were kept and made available
to the Tribunal. It is appreciated that there is no obligation on the
Authority to keep special records, but the keeping of records is
conducive to clarity and so far as the Tribunal is concerned, the
production of an adequate record obviates the necessity, which
was experienced in this case, of calling a member of the Authority
who participated in the proceedings to give evidence before the
Tribunal as to what actually happened.
The second point relates to the production of documents
before the Tribunal. Ideally, documents should be the subject of
agreement between the parties and an agreed bundle made up
for the use of the Tribunal. It is appreciated that this is not always
possible, particularly when one or more of the parties is not
represented by counsel. We would stress however, the
importance of parties coming before the Tribunal with all relevant
documents in their possession ready for production. It is not
really the task of the Tribunal to ascertain what documents are
relevant and available, still less to arrange for their production.
(c) An Occupier in a good class residential neighbourhood

can reasonably expect privacy and quiet in such an area
and a day nursery school may well be an unreasonable
interference with such privacy and quiet. A planning
Authority has no legal obligation when considering an
application for planning permission to afford an applicant
a right of being heard even though natural justice requires
that the applicant should have a right to know and answer
objections by adjoining owners and occupiers
MALIN v. MUNICIPAL COUNCIL OF NDOLA AND ANOTHER

(1965) ZR 162 [TCPT]
delivered by DARE, PRESIDENT]
In this appeal, which was heard at Ndola on 18th November,

1965, the appellant was not represented by counsel. Her husband
Mr George Malin appeared to give evidence on her behalf. We
do not consider that he is a ‘legal representative’ contemplated
by the Town and Country Planning (Appeals) Regulations (Cap
123) (hereinafter referred to as ‘the Appeals Regulations’).
However, having regard to regulation 11 (3) of the Appeals
Regulations we did allow him considerable scope by inviting
him to put questions to witnesses, through the Tribunal, and we
are satisfied that despite the absence of the appellant, her case
was adequately represented.... [The proposed change of use of
a portion of appellant’s premises to a Day Nursery School
constituted a ‘Development’ which required an application to
the respondent as Planning Authority for the necessary planning
permission.] . . .
The application was first considered at a meeting of the
Development Town Planning and Building Plans Committee of
the respondent (hereinafter called ‘the Committee’) purporting
to act under delegated powers, on 30th April, 1965, when
consideration was ‘deferred for consultation with adjoining
owners and occupiers’ We hold that the respondent was entitled
to take that course; indeed it was a wise course to take. The
application did not justify the respondent in advertising for public
objections, but it did justify consultation with adjoining owners
and occupiers particularly having regard to the objector’s attitude
on a previous occasion when he complained to the Council (in
its capacity as local authority) about the appellant’s activities on
the premises.
After such inspection, the Committee decided that the
application should be ‘Refused on the grounds that the premises
are unsuitable for the establishment of a day nursery school and
the proposed development would be detrimental to the amenities
of the area’.
Mr G. Malin complained to us that the appellant had been
given no opportunity of knowing what objections had been raised
to the application or of answering them, and that when he had
asked the Deputy Town Clerk of the respondent what were the
detailed reasons for refusal of the application, the officer had
refused to tell him but had told him ‘that someone had
complained’. He told us that the first time he really knew why
the respondent had refused that application was when he saw a
copy of the respondent’s case filed in this appeal.
This Tribunal is not in a position to dictate to any planning
authority what procedure it should adopt in considering an
application for planning permission. Having decided in this case
to give adjoining owners and occupiers an opportunity of
expressing their views, it seems to the Tribunal that natural justice
required the Planning Authority to at least inform the appellant
of such views, if any were submitted by adjoining owners and
occupiers, and to give to the appellant a reasonable opportunity
of replying to any of them which might be adverse to the
appellant. The respondent did not do so. It did not afford the
appellant an opportunity of appearing before it. It was under no
legal obligation so to do.
This Tribunal has therefore proceeded to deal with the appeal
as a hearing ‘de novo’. It has not dealt with it as an appeal ‘on
the record’ for the reasons above mentioned and also for the
very simple reason that no record of the deliberations of the
respondent or the Committee has been made available to the
Tribunal.
Having carefully considered the evidence of Mr Malin on
behalf of the appellant, Mr R.T. Wright, Mr E.W.H. Walter and
Alderman Mrs H. Charles-Smith on behalf of the respondent,
and the evidence of the objector and the representations made
to us, and having inspected the premises and the adjoining
premises we have come to the following unanimous conclusions:
(a) The area in which the premises are situate, being one
zoned under the Ndola Approved Development Plan for
detached houses, is one which can be reasonably regarded
as a good class residential area, and anyone building a
dwelling house on a plot in that area might reasonably
expect the privacy and quiet of such an area.
(b) The establishment of a Day Nursery School on the
premises the subject of the appeal must inevitably cause
nuisance and annoyance to adjoining occupiers, particularly
the objector since the play area for the children on the
premises must be on that side of the premises which
immediately adjoins his plot.
(c) That the degree of interference caused and likely to be
caused to the quiet and privacy which the objector is
entitled to expect is such as to justify us in upholding the
objector’s objection and the respondent’s refusal of
Planning Permission.
(d) That this decision relates solely to the premises and the
objections made to the application. There may well be a
good case for the establishment of a day nursery on some
other plot in the same area where the play area was in
another place. We have taken no account of the apparent
temporary nature of the fence of the play area and the
thatched shelter nor have we considered whether they
were in conformity with the Ndola Municipal By - Laws.
Accordingly the Tribunal rules that this appeal will be
dismissed…
(d) Where a city council’s by-laws require that a person who
erects a building without obtaining a permit must be
notified that the building may be demolished if he fails to
do so himself within a specific period and the Council fails
to notify the person of the period in which the building
must be demolished and the fact that the council may
demolish it, the council will be acting in contravention of
its own by-laws if it demolishes the building and will be
liable for damages to the owner of the building.
Ndola City Council v. Kasonso (1995/97) ZR 233
Court delivered by SAKALA, JS, as he then was]
This is an appeal against a judgment of the High Court entered

in favour of the respondent wherein the court held that the
appellant contravened By-Law 67 of the Ndola Municipal Council
By-Laws, Cap 480 by demolishing the respondent’s building.
For convenience, we shall refer to the respondent as the
plaintiff and the appellant as the defendant, which they were in
the court below.
The facts of the case which were not in dispute were that,
sometime in June 1994, the plaintiff applied for a residential plot
at Stand No. 8226, Ndola. He was offered the plot and accepted
it. After paying for the necessary service charges, the plaintiff
applied for a building permit in accordance with the Ndola City
Council By-Laws. There was no response to the respondent’s
application for a building permit. Consequently, after a period
of five months from the date of the application for a building
permit, the plaintiff commenced building on the stand in question.
On 3rd January, 1996, the defendant wrote the plaintiff, advising
him to stop construction, as there was no building permit.
Consequent to the letter, the defendant demolished the building
on Stand No. 8226. On the facts not in dispute and on the
evidence before him and after reviewing the relevant By-Laws,
the learned trial Judge found that the provisions of the By-Laws,
were mandatory and prohibited any one from erecting or
beginning to erect any building without a building permit. He
found that in the instant case it was not in dispute that the plaintiff
had commenced erecting the building without a building permit.
The court accepted that the plaintiff had received a letter from
the defendant over the house before being granted a building

permit. The court further found that By-Laws of the defendant
provided for an exemption and on the facts not in dispute the
plaintiff was entitled to commence building his house without a
building permit. The court held that under the exception and on
the facts not in dispute, the plaintiff was entitled to commence
building his house without a building permit. The court concluded
by setting out the steps that the defendant must follow before
demolishing a building or structure constructed in contravention
of its By-Laws as:
(a) Notifying in writing, the person constructing the building
or structure that he must demolish it within a specified
period and that
(b) If the structure or building were not demolished within
a specified period, that Council would enter the site
and demolish the structure or building.
The court held that from the evidence, the defendant Council
did not follow the procedure provided by its own By-Laws. The
court also held that the letter written by the defendant Council
to the plaintiff advising him to stop the construction on the ground
that he had not obtained a building permit did not comply with
the provisions of the defendant’s By-Laws. The court further
held and found that the defendant Council demolished the
plaintiff’s building in contravention of its own By-Laws and
accordingly entered judgment in favour of the plaintiff and made
an order for damages to be assessed by the District Registrar.
This is the judgment the defendant council has appealed against.
The memorandum of appeal consists of two grounds namely:
that the learned trial judge misdirected himself in holding that
the provisions of the By-laws were not complied with by the
defendant and that the judgment was against the weight of the
evidence.
On behalf of the defendant, Major Kaunda informed the court
that he was adopting his submissions in the court below as part
of his submissions in this court in addition to his brief written
heads of arguments. In his oral arguments counsel pointed out
that the court below overlooked certain provisions and sections
relating to the Ndola City Council Town and Country Planning
Act, Cap 475. He specifically drew the court’s attention to the
Ndola Municipal Council By-Laws 60 (3). In relation to the
By-Law 67 (1), counsel submitted that the plaintiff having been
informed that the building permit had not been approved, he
should not have commenced the construction of the building.
He contended that By-Law 67 (1), should be read in conjunction
with section 28 (2) of Cap. 475 as well as section 23 of Cap 475
and Regulation 11 of Town and Country Planning Development
Order, Cap 475 relating to applications for planning permissions.
According to counsel the letter of 3rd January,1996, was
adequate notice to the plaintiff pointing out that By-Law 67 (1)
is intended to cater for three situations namely; where a permit
is not issued, where a permit is issued but the portion of the
building is in breach of that permit, and where a permit is issued
by the council but a different building has been erected.
According to Major Kaunda the plaintiff fell into a category
where a permit had not been issued although he had applied for
it but proceeded to construct the structure. Counsel however
conceded that as there was no communication before erecting
the structure to foundation level, the plaintiff was entitled to
start the building but contended that failure by the defendant
Council to inform the plaintiff within 30 days of the date of his
application was not a justification for the plaintiff to have started
the construction of the structure.
In the alternative, Major Kaunda submitted that a double
storey building which the plaintiff was constructing was in conflict
with the house plan because the plot did not cater for a double
storey building or house as it was too small to accommodate
such a building and encroached into another plot. According to
counsel, the defendant had fulfilled the requirements of By-Law
67 by a letter dated 3rd January, 1996, which by implication
amounted to a notice which brought the nature of breach to the
attention of the plaintiff and was within 28 days supposed to
comply with that notice which he failed to do and the defendant
was therefore entitled to demolish the structure.
On behalf of the plaintiff Mr Chulu informed the court that
he was relying on his written heads of arguments. In his oral
arguments he submitted that the appeal had not disclosed any
ground upon which this court could safely interfere with the
judgment of the court below. He submitted that the defendant
had never complied with By-Law 67 even if section 23 extended
the period. He urged the court to dismiss the appeal with costs.
From the submissions in support of the appeal it is quite clear
to us that there is only one ground of appeal which was actually
argued before us. The other ground in the memorandum, as
framed, did not amount to a ground of appeal at all.
As already observed that the salient facts in this appeal are

common cause and the most significant fact is that the plaintiff
conceded that he commenced erecting the building without
obtaining a building permit. The plaintiff’s explanation, accepted
by the learned trial judge, was that he started erecting the building
because of the delay by the defendant Council in approving the
building plans he had submitted. The issue for determination
centres on the interpretation of the defendant’s By Laws Cap
430 specifically By-Laws 57 (1)(c), 60 (3), and 67 (2).
Major Kaunda invited us to read these By-Laws together
with sections 23 and 28 (2) of the Town and Country Planning
Act Cap 283. We have examined these sections. Section 23
deals with development and subdivision orders by the Minister.
In our view, this section is irrelevant to the facts of the appeal
before us. Section 28 (2) does not help the defendant either
because it specifically deals with an application for subdivision.
This was not the issue here and even if it had been the issue the
section also makes the point that if within a specified period of
ninety days after receipt of an application for subdivision, the
planning authority fails to serve a notice on the applicant as to
how the application has been dealt with, ‘then the application
shall be deemed to have been approved…’ This provision does
not take the case of the defendants any where either.
By-Law 57 (1)(c) reads:
57. (1) No person shall erect or begin to erect

any building until:
(c) a written permit to be called a ‘building
permit’ has been obtained from the council
to erect the building, together with a signed
copy of the plan approved by the Council as
hereinafter provided.
The court found that the provisions of By-Law 57 (1)(c) are

mandatory and prohibit any person from erecting or beginning
to erect any building without first obtaining a building permit.
We agree with the learned judge’s finding.
Having made this finding the court proceeded to consider
By-Law 60 (3) which reads:
if within thirty days of the receipt of any plans or

application…… delivered in accordance with these
By-Laws the Council shall fail to intimate to the
person submitted such plans its disapproval or the
fact that it has not yet approved of the building or
work which the said person intends to erect, the
person submitting the plans may proceed with such
building or work in accordance with the plans, but
not so far as to contravene any other of the
provisions of these By-Laws.
The learned judge found that the provisions of By-Law 60 (3)

are an exception to By-Law 57 (1)(c) since they allow a person
to begin erecting the building if within thirty days he has not
been informed of the decision of the Council on the building
plans submitted. The learned judge further accepted that By-
Law 60 (3) entitled the plaintiff to commence building his house
since he had not been informed by the defendant council of its
decision. We agree with the learned judge on all these findings
and take note that the delay here was of five months.
On the evidence on record the court accepted that the plaintiff
received the letter dated 3rd January 1996 despite having denied
in evidence that he did not receive it. To complete the story we
set out here that letter.
The letter reads:
January 1st, 1996

William Kasonso,
P.O BOX 23001,
Ndola.
Dear Sir,
PLOT NO. 8226 Petauke Road Kansenshi
You are carrying out construction works to build a

residential house on the above said plot without obtaining
a building permit from Ndola City Council. This action
is a serious contravention of the applicable By-law 57
(1)(c) Part III Cap 480 of Ndola Municipal by-law.
Therefore, I am requesting you to immediately stop

construction until you obtain a building permit for the
same. Failure to comply with my request will compel
me into recommending your plan to be disapproved and

all the work you carried will be deemed illegal and liable
for demolition. This is the final warning.
Yours faithfully
J.W. Wamulume, Director of Engineering Services
c.c. Director of Legal Services.
Having found that the Plaintiff received the letter, a finding with
which we agree, the learned Judge proceeded to consider By-
Law 67 (2) which reads:
If any person erects or begins to erect any building

without having obtained the permit required by
these By-Laws ….the Council may in addition to
any other proceedings that may be taken for breach
of these By-Laws, require, by written notice, such
person to demolish or remove such building or any
part thereof or to make such alteration in such
building as it may prescribe within a time to be
specified in the said notice. Further, in the same or
another notice, the Council may notify that person,
that if such requirement is not complied with within
the specified time, the Council will itself enter upon
the premises and carry out such demolition, removal
or alteration…
The court found that there was no written notice specifying a

period within which the plaintiff had to demolish his building.
Further the court found that there was no written notice informing
him that if he did not comply it would enter the premises and
carry out such demolition itself. The defendant demolished the
building without following their own By-Law 67. The letter
they wrote did not amount to a notice as required by By-Law
67. The learned Judge’s conclusion was inevitable. We are
more than satisfied that on the evidence on record there can be
no basis of disturbing the learned trial judge’s finding.
(e) If the proposed change in the use of the premises and the
existing use fall under the same use group that does not
constitute material change and hence no planning
permission is required
Northmead Supermarket Limited, and Others v. Lusaka City Council

[TCPT]
delivered by MATINIBI, PRESIDENT]
The compass of the facts relating to the appeal are short. The
case for the appellants is that sometime in June, 1999, the
appellants applied to the Director of City Planning of Lusaka
City Council for change of use in respect of Stand No. 4508,
Madizimoyo Road, Northmead, Lusaka, from a supermarket to
a café and restaurant.
In response to the said application, the Director of City
Planning, in a letter dated 6th September, 1999, advised that the
premises in question has an established use rights as a shop
which includes supermarket and therefore the appellants could
carry on any retail trade or business within the same use group
without planning permission.
The Director of City Planning went on to state that,
‘operations’ such as a bar cum bottle store, including
discothèques are incompatible to the area because of the
presence of the adjoining church, as well as residential flats on
top of the premises. Thus, carrying on the business of a bar,
bottle store and/or discothèque were inappropriate in the setting
and consequently the appellants’ application was rejected.
It was submitted on behalf of the appellants, that the reasons
advanced for the rejection of the application are not satisfactory
because there are several business houses in the same area
carrying on the business of a bar, bottle store or discothèque. It
was further submitted that the respondent failed to address the
fact that the proposed change of use had a restricted time within
to operate.
The respondents submitted that the appellants did not apply
for planning permission before change of use from a supermarket
to a bar, bottle store, or restaurant. The subsequent application
for change of use which was made after the service of the
enforcement notice, was rejected because of the use of the
premises as a bar or bottle store would have a disturbing effect

in the setting.
The respondent’s advocates further submitted that the change
of use is in breach of clauses 4(iii), (x) and (xxiii), of the lease
agreement entered into between the appellants and the
respondents in respect of the premises in question. A copy of a
lease agreement was adduced to support the assertion of the
said breach.
At the end of the hearing, Counsel for the appellants and
respondent applied to file written submissions. To date, only the
appellants’ have filed the submissions. The respondent’s counsel
has neglected to file submissions. The gist of the appellants’
submissions is that the reasons given for the rejection were out
of context because the appellants were seeking permission to
change the use of the premises from supermarket to a restaurant
cum café and not as a bar, bottle store and/or discothèque as
rejected by the respondent. The appellants submitted that they
have been discriminated against because there are other persons
or entities carrying on similar businesses in the area. Counsel
for the appellants pointed out that the respondent concede in
their letter dated 6th September, 1999, that planning permission
is unnecessary in the circumstances.
The primary question or issue to be determined in this appeal
is whether or not the refusal by the respondent to grant planning
permission was reasonable in the circumstances.
Prior to addressing the foregoing, it is instructive to ascertain
and state the legal basis of a planning permission. Section 22
(1), of the Town and Country Planning Act, provides in part
that;
…Permission shall be required…for development

or subdivision of land that is carried out…
However, section 22 (1) aforesaid, still begs the question as to

what the term ‘development’ entails. The answer is provided
by section 22 (4) of the Town and Country Planning Act, which
defines ‘development’ to mean the carrying out of any building,
re-building or other works or operations on or under land or
the making of any material changes in the use of land or
building.
The central question in this connection is as follows: Did the
appellants in their application propose any material changes in
the use of premises?
At any rate, what does the term ‘use’ entail or imply. Lord
Denning in the English decided case of Parker v. Secretary of
State for the Environment, 1978 1 WLR 1308, explained the
distinction between ‘operation’ and ‘use’ as follows:
...it seems to me that the first half ‘operation’

comprises activities which result in some physical
alteration to the land which has some degree of
permanence in relation to the land itself. Whereas,
the second half ‘use’ comprise activities which are
done in, alongside or on the land but do not interfere
with the actual characteristics of the land.
Furthermore, in the case of Marshall v. Nottingham City

Corporations,27 it was observed at pages 665 and 666 as
follows:
...The mere fact that a dealer in the course of his

business begins to deal in goods which he had not
dealt with before does no necessarily involve a
change, still less, a material change in his use of
the land or premises where the business carried
on it any building, it may be that there is a change
of use if, for example, the business of a baker is
substituted for a different business, for example,
that of a grocer, but I am unable to see how and
why such a change can be material from any point
of view which could legitimately be taken by a
planning authority, that is to say material or the
purposes of the Town and Country Planning Act…
We are therefore satisfied that the application to change use of

the premises from a supermarket to a café cum restaurant does
not constitute a material change and therefore does not require
planning permission in keeping with the Town and Country
Planning (Use Groups) Regulations made pursuant to section
53 of the Town and Country Planning Act, Chapter 283 of the
Laws of Zambia. Notwithstanding, the time allowed for
operating a restaurant cum café should be strictly adhered to
and enforced by the relevant authorities.
Further, the respondent’s purported rejection of the planning
permission was founded on irrelevant considerations.
27
1960, 1 All ER 659.
In any event, the application was not submitted to the

appropriate standing committee for consideration.
However, if the appellants had submitted an application of
change of use from a supermarket to a bar, bottle store, or
discothèque, the application as it stands without safeguards
against commission of nuisance would have been rightly rejected
because the same would be inappropriate on the premises in
issue.
The submission by Counsel for the respondent that the
application for planning permission was refused because the
appellants were in breach of the lease agreement is clearly
misconceived. A distinction must be drawn between the role of
the respondent as a planning authority as opposed to being a
landlord. The two positions must not in any way be confused.
The respondent as landlord is at liberty to invoke appropriate
measures to remedy the alleged breach of the tenancy
agreement.
The net result of this appeal is that the purported application
for change of use by the appellants from a supermarket to a
café cum restaurant is otiose ...
18.16 Evaluation of the Town and Planning Legislation
Though the Town and Country Planning Act may be outdated

and at the same time not comprehensive, the problem has been
compounded by lack of enforcement of the law by the planning
authorities including local authorities. The result has been the
erection of structures and buildings by developers without regard
to the Land Use Plan (structure and local plans). This has been
compounded by the illegal land allocations by local authorities.
Professor Volgale has succinctly summarised the problems
facing most African countries in relation to urban environmental
legislation. He observed that;
The African Urban environmental legislation is a

product of historical accidents and a colonial
remnant. Most of the developing countries in the
African region do not have comprehensive human
settlement legislation. Numerous piecemeal and ad
hoc ordinances and codes attempt to regulate the
acquisition, development and use of land, in the
urban and rural areas. The Town and Planning Acts
in force are old, obsolete and not effective. They
neither serve the present needs nor respond to
changing conditions. The Acts are rudimentary, and
do not require comprehensive land use decisions.
In short, Town and Country Planning Legislation
in most of the African countries is linked by three
factors; its British roots; its need to be brought up
to date, and its necessity to be made relevant and
responsive to the problems and potentials of the
African environment. Urban planning and housing
operate within their statutory framework and often
without much co-ordination and co-operation and
often with overlapping powers, functions, and
jurisdictions.28
The above observations apply with equal force to Zambia.
18.17 Summary of Chapter Eighteen
This chapter has examined and considered the various statutory

enactments that control or regulate the use of land in Zambia.
The Town and Country Planning Act imposes a significant
limitation on the freedom which the common law allowed for
land owners to build on their land, or to change the use to which
their land and buildings were put. The primary object of land
use planning is to ensure that all land is put to the use which is
best from the point of view of the community. This may be
achieved by providing a rational and integrated pattern in the
process of land use and development. The central concept under
the Town and Country Planning Act is planning permission.
Planning permission is required under the Act for any
development or subdivision of land.29 These terms, development
and subdivision, are defined under the Act. Development is defined
to mean the carrying out of any building, rebuilding, or
other works or operations on or under land, or the making
of any material changes in the use of the land or building.
Subdivision is defined to mean ‘the division of any holding
of land into two or more parts, whether the subdivision is
28
Vogale, L.R., ‘A Paper for Planning Legislation for African Nations’, A Paper presented to the University
of Zambia, Commonwealth Youth Programme, Africa Centre, Planning Legislation for African Nations
Conference, 12-16 May 1986.
29
In areas in respect of which there is an order to prepare a structure or local plan, in areas subject to an approved
structure or local plan and is such areas as are within a distance of twenty miles from the areas mentioned
above.
effected for purposes of conveyance, transfer, partition,

sale, gift, lease, mortgage or any other purpose…’
From the cases that have been excerpted herein, it can be
safely said that most disputes revolve around the concept or
what amounts to material change.
Some of the cases that have been excerpted in this chapter
have illustrated the fact that what constitutes material change in
the use of land or building is essentially a question of fact to be
determined in each particular case.
In case of doubt as to whether a proposed change of use
would amount to a material change or not, a person may take
advantage of the provisions of section 7 of the Town and Country
Planning Development Order.30 The said section provides that:
If any person who proposes to carry out any

operations on land or make any change in the use
of land or buildings wishes to have it determined
whether the carrying out of those operations or
the making of that change in the use of the land or
buildings would constitute or involve development
within the meaning of the Act and, if so, whether
an application for permission in respect thereof is
required under the Act having regard to this Order,
he may apply to the Minister or planning authority,
as the case may be to determine that question.
30
The Order was issued by the Minister pursuant to section 23 of the Act. See the Subsidiary Legislation to
the Act.
723
Chapter Nineteen
THE INFORMAL LAND TENURE IN ZAMBIA:

The Housing (Statutory and Improvement Areas)
Act
19.0 Introduction
At the time of independence (1964), Zambia was the most

urbanised country in Sub-Sahara Africa (excluding South Africa)
with approximately 20 per cent of its population of 3.5 million
living in urban areas. 1 Immediately after independence
restrictions on migrations to the towns were lifted, the urban
growth rate increased rapidly but the building programme fell
more and more short of demand.2
The influx of people into urban areas (both before and after
Independence) created a problem of human settlement. During
the colonial times the shortage of housing in the urban areas led
the African population to turn to settlements, on privately owned
land in the vicinity of the major towns. These settlements evolved
into permanent communities and became known as unauthorised
compounds and attempts to demolish them failed. In almost all
urban areas in Zambia, the towns and cities are surrounded by
‘shanty’ or squatter compounds. The City of Lusaka has
approximately thirty-five high density informal settlements within
its boundary.3
The manner in which the land is occupied contravenes land,
health and town planning laws. For instance, in Lusaka the area
where John Laing and Misisi compounds are situate is zoned
for commercial and industrial use.
In his watershed speech of 1975, President Kaunda alluded
to the problem of unplanned townships. President Kaunda
observed and commented thus:
As you know, Townships have sprung up virtually

from nowhere in many cities and towns as well as
in the country side. In future these will create
1
S. Knauder, ‘Shacks and Mansions’, An Analysis of the Integrated Housing Policy in Zambia. Lusaka:
Multimedia Publication (1982), p. 14.
2
Ibid.
3
See Report No. SWE 1-3, Informal Land Tenure in Lusaka, Zambia: A Joint Project between Sida and Swedesurvey,
Benita Nordin, Gavle Sweden, July 1998 at p. 17.
immense social problems of which we already have

enough. Therefore, from now onward local
authorities must see to it that no unauthorised
buildings are erected within their areas of
jurisdiction, you have powers. use them.4
Indeed, as pointed out by President Kaunda, local authorities

have powers under the Local Government Act, Public Health
Act (Building Regulations) and Town and Country Planning Act
to, inter alia, demolish unauthorised buildings. If these laws
were vigorously enforced the squatter problems could have been
perhaps kept under control. This was not done, with the result
that today local authorities and town planners are faced with
immense problems of unauthorised or illegal settlements.
Initially, squatter clearance was the official response to the
growing problem of illegal settlements in urban areas. In the
Second National Developmental Plan [1972 - 1976],
Government’s approach towards the squatter problem changed
from that of demolition campaign to cooperation with the
squatters.5 Government came up with the policy of squatter
upgrading. It was recognised under the plan that although
squatter’s areas are unplanned, they nevertheless represented
assets both in social and financial terms. The areas required
planning and services, and that the wholesome demolition of
good and bad houses alike was not a practical solution.6
19.1 The Housing (Statutory and Improvement Areas) Act
The official regularisation of unauthorised settlements in the

Second National Development Plan, was followed by conferring
of security of tenure to the tenants and occupants in site and
service schemes and upgraded squatter settlements. The system
of legalising and upgrading settlements is regulated by the
Housing (Statutory and Improvement Areas) Act7 of 1974. The
Housing (Statutory and Improvement Areas) Act (hereinafter
referred to as the Housing Act) was enacted as a response to
the housing problem in urban areas in the country. The Act
provides for the creation of two types of areas, viz: Statutory
Housing Areas and Improvement areas.
4
Address by His Excellency the President Dr K.D. Kaunda to the National Council of the United National
Independence Party, Mulungushi Hall, Lusaka, 30 June - 3 July, 1975, p. 47. President Kaunda’s speech has
since become known as the ‘Watershed Speech.’
5
See Government Republic of Zambia, Ministry of Development Planning and National Guidance, 2nd National
Development Plan, 1972 - 76.
6
Ibid., p. 148.
7
THE INFORMAL LAND TENURE IN ZAMBIA: THE HOUSING
(STATUTORY AND IMPROVEMENT AREAS) ACT 725
19.2 Salient Provisions of the Housing (Statutory and

Improvement Areas) Act
19.2.1 Statutory Housing Areas
Section 4 of the Housing Act empowers the Minister responsible

for housing by statutory order, to declare any area of land within
the jurisdiction of the council to be a Statutory Housing Area.
(1) The Minister may by statutory order declare

any area of land within the jurisdiction of a
Council to be a Statutory Housing Area, and
may at any time thereafter declare that the
whole or part of the land comprised in the
Statutory Housing Area shall cease to be part
of a Statutory Housing Area:
Provided that no land shall be declared to be a
Statutory Housing Area unless-
(i) such land is held by the Council in fee
simple or by way of leasehold or a grant
thereof has been made to the council in
accordance with the provisions of the
Zambia (State Lands and Reserves)
Orders, 1928 to 19648; and
(ii) a plan showing the particulars or details
hereinafter mentioned and duly approved
by the Surveyor-General is deposited by
the Council with the Surveyor-General, the
Commissioner of Lands, and with the
Registrar of Lands and Deeds.
Section 5 of the Housing Act provides for subdivision and letting

of land in Statutory Housing Areas. The section provides that:
(1) Subject to the provisions of this Act, and

notwithstanding anything to the contrary
contained or implied in any written law or in
any document, a Council may, in any Statutory
Housing Area
(a) with the approval of the Minister subdivide
any land;
8
The Statelands and and Reserves Order, 1928 - 1964 have since been repealed by the Lands Act of 1995.
(b) in accordance with the specifications

prescribed by the National Housing
Authority, erect any building or effect any
improvement on any piece or parcel of
land;
(c) let to any person any piece or parcel of
land for such term and on such conditions
as may be approved by the Minister:
Provided that in a Statutory Housing Area
the Council shall not-
(i) sell or convey any freehold estate;
(ii) let more than one piece or parcel of
land to any one person;
(iii) save for use and occupation by
himself or his bona fide dependants,
let to any person engaged in the
business of buying, selling, letting,
developing, or in any way dealing in
immovable property.
The interest intended to be conveyed in a statutory housing area

is a lease. This emerges clearly from the wording of section 5
(1)(c) above. The Housing Act is silent as to the duration of the
lease. In practice local authorities have been issuing Council
certificate of title for ninty-nine years. The issuance of the
Council certificate of title is covered under section 7 of the Act.
Section 11 of the Act requires that in every council where
there is a Statutory Housing Area or Improvement Area, there
must be a Registrar who shall keep and maintain a register to be
called the register of titles and shall file therein all copies of all
grants and of all certificates of title issued under the Act.
19.2.2 Improvement Areas
As a way of granting security of tenure to people living in illegal

or unauthorised settlements, the Minister is empowered to
declare an area within the jurisdiction of the Council to be an
Improvement Area. In other words, the Minister is empowered
to legalise what was an illegal settlement. Section 37 of the
Housing Act empowers the Minister to declare an area of the
Council to be an Improvement Area.
(1) The Minister may by statutory order declare

any area of land within the jurisdiction of a
Council to be an Improvement Area, and may
at any time thereafter declare that the whole
or part of the land comprised in the
Improvement Area shall cease to be part of
an Improvement Area:
Provided that no land shall be declared to be
an Improvement Area unless-
(i) such land is held by the Council in fee
simple or by way of leasehold or a grant
thereof has been made to the Council in
accordance with the provisions of the
Zambia (State Lands and Reserves)
Orders, 1928 to 19649; and
(ii) a plan showing the particulars or details
hereafter mentioned and duly approved by
the Surveyor-General is deposited by the
Council with the Surveyor-General and the
Registrar of Lands and Deeds.
(2) The plan referred to in paragraph (ii) of the
proviso to subsection (1) may be in such form
as the Minister may approve and shall be
entitled ‘Improvement Area Plan’ and shall
contain, inter alia, the following particulars or
details:
(a) the name and description by which the
Improvement Area is known or to be
known;
(b) the existing roads, if any;
(c) the roads proposed to be constructed;
(d) the existing areas for common user;
(e) the proposed areas for common user;
(f) the location of each building identified by
a serial number.
A number of illegal settlements have been legalised by the Minster

using the powers vested unto him under section 37.10 The interest
granted to occupants in the improvement areas is a licence.
Section 39 of the Housing Act forbids anyone from occupying
such land without a licence.
9
Ibid.
10
See subsidiary legislation to the Act for the areas or settlements that have been legalised including those that
have been declared Statutory Housing Areas.
(1) No person shall without a licence issued under

this section and except in accordance with the
conditions thereof, build, use, let, sell, create a
lien or security or in any way deal with any
dwelling or building erected on any piece or
parcel of land.
(2) The Council may issue to any person a licence
(hereinafter referred to as an occupancy
licence) in respect of any piece or parcel of
land in such form, subject to such conditions
and on payment of such fees as may be
prescribed:
Provided that not more than one occupancy
licence shall be issued to any one person.
(3) Subject to the provisions of this Act every
occupancy licence shall be valid for a period
of not more than thirty years.
(4) Every occupancy licence and any other
document relating to any dealing with land
shall be registered in such manner as may be
prescribed.
(5) The holder of an occupancy licence shall have
such rights and obligations in respect of the
piece or parcel of land to which the licence
relates and in respect of any dwelling or other
building erected thereon as may be prescribed.
19.2.3 Construction of Houses in Statutory Housing Areas
Section 40 of the Housing Act regulates the construction of

buildings in Statutory Housing Areas. The section provides that:
(1) Every building erected and every

improvement effected on any land to which
this Act applies shall be in accordance with
specifications approved by the National
Housing Authority or by the Council in whose
jurisdiction such land is situated.
(2) The National Housing Authority may with the
consent of the Minister make regulations
prescribing the specifications for any building
or improvement referred to in subsection (1).
19.2.4 No Dealing with land without the Council’s Consent
Section 42 of the Housing Act prohibits dealing with land in

statutory housing areas and improvement areas without the
council’s authority. The section provides that:
No Registrar shall register any document

purporting to transfer, deal in or affect any land
unless the Council in whose jurisdiction such land
is situated is a party to the transaction recorded
therein or has signified its consent to any such
transaction.
19.2.5 Non-Application of Certain Enactments in Statutory

Housing and Improvement Areas
Section 48 provides for the non-application of the following

statutes to Statutory Housing and Improvement Areas:
1. The Lands and Deeds Registry Act;11
2. The Land Survey Act;12
3. The Rent Act;13
4. The Town and Country Planning Act.14
The non-application of the above enactments to Statutory
Housing Improvement Areas was to make dealings in land as
simple and as cheap as possible.15 Matibini has explained the
reason for the exclusion of the above statutes to be thus:
The exclusion of the Lands and Deeds Registry

Act is mainly related to the requirement that every
document presented for registration should contain
a diagram or plan. It must be noted that the Survey
Act together with the regulations require a very
high degree of precision in carrying out surveys
and preparation of diagrams. In practice, in the
case of Council certificates of title issued to tenants
in Statutory Housing Areas, a sketch plan is
annexed to the certificate of title showing the
11
12
13
14
15
See The Housing (Statutory and Improvement Areas) Bill 1972, Daily Parliamentary Debates No. 36, Friday,
2 August 1974.
location of the plot and the size of the same. The

sketch plan is extracted from the Statutory Housing
Area Plan which is approved by the Surveyor–
General. This practice has the obvious advantage
of averting the otherwise high costs of survey
incurred in the preparation of diagrams of each
house. Further, in the case of Improvement Areas,
the irregular patterns of housing presented a
formidable challenge to established survey
techniques. Thus, an occupancy licence simply
identifies the houses by serial numbers which are
extracted from the Improvement Area Plan. The
unsuitability of the existing survey requirements to
Improvement Areas raises doubts as to their
general application. One may question the
necessity of precise measurements in a country
which has legislated against and rejects the
commercialisation of land and housing.
The exclusion of the Town and Country
Planning Act is another significant aspect of the
Housing Act. It removes the areas covered by the
Housing Act from Planning authorities appointed
under that Act. However, the exclusion of the Act
raises the question of who does the planning. Is it
to be left to the squatters themselves to continue
spontaneous and dynamic planning or be placed
under official control? The Housing Act makes the
NHA or Council the Planning Authority for the
Statutory Housing and Improvement Areas. The
NHA is the major institution charged with the
responsibility of housing development in the
Country. This arrangement ensures that the NHA
is available to especially, the majority of the District
Councils which lack the technical staff to plan and
design housing developments.
The Rent Act does not also apply to areas
covered by the Housing Act. The aim of rent
control is to prevent individuals from capitalising
on the scarcity of housing. However, rent controls
have a long and unsuccessful history.16
16
Matibini, P., ‘The urban housing problem for low-income groups with special reference to the city of Lusaka,
LLM Thesis, UNZA, Lusaka, pp. 49 - 51.
19.2.6 Land Belonging to Local Authorities: The Head Lease
System
Under both sections 4 and 37 (which empower the Minister to

declare an area of land within the jurisdiction of the Council to
be a Statutory Housing Area and an Improvement Area
respectively) the land can only be declared to be a Statutory
Housing or an Improvement Area if, ‘such land is held by the
Council in fee simple or by way of leasehold or a grant thereof
has been made to the Council in accordance with the provisions
of the Zambia (State Lands and Reserves) Orders 1928 –
1964’.17
The land belonging to local authorities was granted to them
by the President (through the commissioner of lands) under the
system of headlease. The essential nature of this system is that
the President grants a lease of specific parcel of land to a Council
for a period of ninety-nine years. The Council thereafter issues
a sublease to a tenant of its own choice usually for the same
period less the last three to ten days thereof.
The Lands Act of 1995 has done away with the system of
headlease. Section 6 of the lands Act provides that:
(1) Subject to subsection (2), all land held by a

Council on a lease including that which has
been subleased, for a period of ninety-nine
years or less shall, by virtue of this Act and
without further assurance or conveyance, be
deemed to have been surrendered to the
President and the sub-lessee be deemed to
hold that land, as if a direct lease had been
granted by the President.
(2) Subject to subsection (3) the sublessee
referred to in subsection (1) shall be deemed
to hold land on the conditions and covenants
of the lease granted to the Council, except
that the lessee shall pay such annual ground
rent to the President as may be prescribed by
statutory instrument.
(3) Subsection (1) shall not apply to land held by
the Councils for their own use or held under
the Housing (Statutory Improvement Areas)
Act.
17
See sections 4 (1)(i) and section 37 (1)(i) of the Act. The Zambia (State Lands and Reserves) Order 1928 - 1964
were repealed by the Lands Act of 1995.
(4) On the commencement of this Act, and on

the payment of a prescribed fee, the Registrar
shall endorse on the relevant folio of the
register, the effect of this section.
In view of the provisions of subsection 3, of section 6 persons

occupying land in Statutory Housing and Improvement Areas
are still sub-tenants of the local authorities concerned.
The article below by Mbao looks at the legal aspects of
Uncontrolled and Unplanned Urban Settlements in Zambia by
way of a commentary on the Housing (Statutory Improvements
Areas) Act of 1974.18
This paper is intended as a contribution to the

discussion of the housing problem in Zambia. It
does not attempt to analyse the economics of urban
housing. Rather, it is concerned with the legal
aspects of uncontrolled and unplanned urban
settlements and public policy responses to the
problem.
It is a trite observation that Zambia has one of
the highest rates of urbanisation in sub-Saharan
Africa. Forty-three per cent of her population live
in urban areas. Of the urban population, 50 per
cent live in unauthorised and unplanned squatter
settlements without basic amenities and services.
Lusaka alone has about 30 of such settlements with
an estimated population of a quarter of a million.19
A glance at the urban landscape reveals town-
centres of pleasant commercial housing and villas
on tree-lined streets in suburbia. Beyond that, there
are endless warren-like shanty towns of surpassing
wretchedness, shack after shack, built of the most
disparate bits of wood, tin, or anything else that
will offer shade and shelter, but uniform in their
shabby inadequacy.
Uncontrolled and unplanned squatter
settlements, with their pervading air of poverty and
18
Mbao, L.M., ‘Legal Aspects of Uncontrolled and Unplanned Urban Settlements in Zambia: A comment on the
Housing (Statutory and Improvement Areas) Act, 1974, in Zambia Law Journal (Vol. 15), (1983), at pp. 86-
97.
19
Hon. M. Muyunda, formerly Minister of State for Decentralisation, Office of Prime Minister, ‘Contribution to
the motion of thanks to the President’s Official Opening of the First Session of the 5th National Assembly’ 8
Dec. 1983.
dreariness, force themselves upon the notice of
the richest citizen and upon the casual visitor from
outside. In these settlements the combination of
the burden of poverty, injustice of economic
inequality, unemployment and underemployment,
malnutrition, illiteracy and high birth rates stand out
in tangible and compelling proportions.20
The problem of uncontrolled and unplanned
urban settlements is not peculiar to Zambia, but is
common to all big cities of the Third World. In such
sprawling cities as Sao Paulo, Mexico City, Manila
and Nairobi, some two-thirds of families entering
the housing market are forced to choose between
installing themselves precariously and clandestinely
in the most central urbanised areas or seeking to
accommodate themselves in rustic houses, made
with their own hands, in the distant periphery
without urban services.21
The role of uncontrolled and unplanned
settlements as a housing form has been the subject
of considerable debate. Are they social aberrations
or a form of viable housing solution? This question
has exercised the minds of civic administrators,
Government economic planners, and architects of
social policy in almost all the Third World’s large
cities.22
In this paper, we focus on the legal aspects of
the problem of uncontrolled and unplanned
settlements in urban Zambia. The central thrust of
our discussion is on the Housing (Statutory and
Improvement Areas) Act, 1975.23
In order to have a fuller appreciation of the
problem, a deliberate attempt is made here to
situate the law in its socio-economic context so as
to seek compatibility between the law on the one
hand and such factors as monetary and fiscal
policies, rural-urban migration and its concomitant
overburdening of social services and facilities in
20
Simons, H.J, ‘Zambia’s Urban situation; in Human settlements in Zambia, Report of the workshop held at the
Centre for Continuing Education, University of Zambia, 12 - 14 Sep. 1975.
21
Ward, P.M., Land Economics (1976), at p. 52.
22
Doebele, W.D., Urban Land Policies and Land Use Control Measures: global summary, New York UN
Department of Economic and Social Affairs (1975), pp. 187-197.
23
Chapter 441 of The Laws of Zambia [now Chapter 194 of the Laws of Zambia].
urban areas, and government policies dealing with

urbanisation, on the other. We will return to these
issues later in the paper.
At this stage it is useful to highlight some
fundamental issues raised by uncontrolled and
unplanned settlements.
Tenure in Uncontrolled and Unplanned Settlements
The non-formalised, de facto tenure of land in

squatter settlements raises in some ways
fundamental issues.
First, in the vast majority of cases such
settlements have been built by illicit invasion of
private or public land. The land is illegally occupied
or illegally subdivided. The settlers build their
houses and establish their settlements wherever
they can.
They often resort to illegal water supplies;
tapping nearby water-mains or digging illegal wells;
and illegal electricity connections; tapping power-
lines where they exist.
Secondly, it is not only in relation to urban land
that the settlers are forced outside the law in
seeking housing. They cannot afford to build
according to official building codes. Their houses
ignore health codes, zoning and building standards,
and master plans beloved of city planners. Although
official housing and planning regulations are meant
to ensure that basic health and safety standards
are met, yet, by demanding unrealistic and costly
standards modelled on the needs and traditions of
western urban standards and living patterns,
squatters are condemned to never attaining the
protection of the law.
Thirdly, the grant of legal title to settlers is a
basic consideration in obtaining community support
and providing a stimulus to self-help improvement
of these settlements. And yet, even the provision
of public services such as piped-water, sanitation,
garbage-removal, public transport, roads, schools
and health centres may be considered a de facto
recognition of the settlers’ acquisition by illegal
means, which may have repercussions in making
future control of the pattern of urban growth more
difficult. Consequently, the city grows haphazardly,
its growth being largely defined by where illegal
settlements spring up.
Fourthly, since the squatters do not know
whether they will be evicted,they do not invest
much in improving their houses or community. The
crucial issue here is that investment in housing is
directly proportional to the perception of security
from non-removal. At the same time, because of
their illegality, the squatters are more vulnerable to
pressure from corrupt civic officials.
Fifthly, in their relationship with the Government,
squatters are from the outset acutely aware of the
illegality of their settlements, the dangers and
struggles that they may have to confront, and the
various means of maximising their chances of
successfully laying claim to the occupied area. This
may include such attempts as the cultivation of
sympathetic publicity, rapidity of the invasion
process so as to confront the Government with an
effective fait accomplish, and overt demonstrations
of nationalism and greater awareness of political
processes.
Sixthly, uncontrolled and unplanned settlements
are one of the most serious obstacles to changes
in urban form. Sometimes the settlers build on sites
ill-suited to housing or dangerous to health. This
city building’ by the settlers overwhelms the efforts
of city planners, administrators, tax collectors, and
building inspectors.
Seventhly, and lastly, in terms of optimum
resource utilisation, an important advantage in the
squatter settlements is its flexibility, leaving decision
making and investment options in the hands of the
household. Households are able to improve the
physical structure of the buildings in accordance
with various criteria: available investment surplus,
family size, investment priorities, and perceived
security of tenure. Further, the settlers are
frequently able to make use of land passed over
by the market and, within the financial and
technological limits constraining them, make

maximum use of every resource invested.
Considered at micro level, squatters make
remarkably productive use of the land they occupy,
frequently bringing into use areas on hill-sides or
in ravines that the private market had passed over.
In essence, squatters represent remarkable
achievements in low-cost engineering.24
On another note, there is the oft-repeated view
that uncontrolled and unplanned settlements are
breeding grounds of crime. It is often said that in
these settlements involvement in one vice or
another has become necessary, for survival.
While there may be some truth in these
assertions, it is our contention that evidence on the
issue is inconclusive.
It is against this background that we now discuss
public policy responses to the problem of squatter
settlements.
Public Policy Responses: From Slums of Despair to Squatters

of Hope
Throughout the world, public policy responses to the

squatter problem have ranged from formal disregard,
benign neglect, spasmodic demolition campaigns to,
recently, cooperation with self-help efforts.
In the classical approach, the tendency has been to
ignore the productive potential of the settlers and to harass
them instead so as to maintain a façade of modernity
and standards and aesthetics of the urban enclave. In
the town and country planning laws, public health
regulations and building codes were found to be handy
tools in implementing squatter demolition campaigns.
This was the general trend in Zambia soon after
independence. But when it became obvious that official
conventional methods of providing housing would not
solve the need for urban housing, the Government decided
to accept the existence of squatter housing as a matter
of fact and reality. As early as 1968, the then Ministry
of Local Government and Housing instructed local
24
Grimmes, O.F. Jr. Housing for low-income Urban Families: economies and policy in developing world.
Baltimore: John Hopkins University Press (1976).
authorities to layout basic sites and service schemes for
squatter settlements. In these settlements, plots were to
be demarcated and serviced with access roads, drainage,
piped water, sewerage, electricity, schools, clinics, refuse
collection and other services.25
This change in policy was authoritatively stated in
the Second National Development Plan in these words:
It is recognised that although squatters’

areas are unplanned, they nevertheless
represent assets both in social and financial
terms. The areas require planning and
services, and the wholesale demolition of
good and bad houses alike is not a practical
solution.26
The primary objective under the Plan was to meet

the housing needs of low income groups in urban areas
through the provision of fully-serviced sites in line with
the overall policy of encouraging home ownership as
opposed to rental accommodation. This entailed a double-
pronged approach, as is outlined below.
First, under the sites and service schemes, it was
recognised that public authorities had limited resources
at their disposal, hence the need to encourage self-help
in an environment of secure land tenure. It was also
recognised that existing building codes were too rigid,
hence the need for a flexible regime specially tailored to
the needs of the squatters. The drafters of the Plan were
also cognisant of the fact that the success of sites and
service schemes was dependent upon the provision of
credit through building materials loans and provision of
public utilities and social services. Under this approach
basic sites and service schemes were introduced in 1968
in Lusaka. The scheme was given added impetus with
the twenty million Kwacha World Bank-financed scheme
in Lusaka. Here, the City Council gave out K250 to each
participant in the scheme for the purchase of door frames,
roofing sheets, concrete blocks and window frames.
25
Government of The Republic Of Zambia: Ministry of Local Government and Housing,Ministerial Circular No.
29, 1968.
26
GRZ, Ministry of Development Planning and National Guidance, 2nd National Development Plan 1972 - 76.
Lusaka: Governemnt Printer, p. 148
Secondly, it was envisaged that existing squatter

settlements were to be upgraded through the provision
of utilities and social services. Upgrading programmes
were designed to cater for those settlers who could not
afford plots in sites and service schemes.
As a result of those changes in Government thinking,
sites and service schemes and squatter upgrading
programmes came to be seen as integral parts of housing
policy. But it was not until 197427 with the enactment of
the Housing (Statutory and Improvement Areas) Act that
the necessary back-up legislation came into being.
Introducing the Bill in Parliament, the then Minister of
local Government and Housing had this to say:
It is also recognised that at present the squatters

are occupying land illegally they live constantly
under the fear that any day they may be forced
to move.
We strongly believe that once the fear of forceful
eviction has been removed, the inhabitants will
improve their unbelievable standards.28
As can be seen from the Minister’s speech, the aim of

the Government was to confer security of tenure on the
settlers in the hope that they would eventually mature
into home owners through self-help. The guiding
principles in the drafting of the Act were that a special
legal regime was necessary for upgrading squatter
settlements and providing for sites and service schemes;
that the regime was to be kept simple and straightforward,
and that provision was to be made for administering the
schemes by conferring rights on individuals as well as
powers on officials and also for public participation
through appropriate organs.
These principles were largely incorporated into the
Act. Thus all dealings in land covered by the Act are not
registerable at the Lands and Deeds Registry but at
District Registries established under the Act; Town and
Country Planning and Land survey laws have been
excluded in order to simplify transactions, and provision
27
Chapter 441 of The Laws of Zambia (now Chapter 194).
28
Hon. P.W. Matoka, then Minister of Local Govt and Housing, Hansard, Verbatim Reports of Daily Parliamentary
Debates, 2 Aug. 1974 Ser No. 36, col. 576, 577.
has been made conferring rights and powers on the
parties, as will be discussed hereunder. What is not clear
is the province of public participation under the Act. It
would appear that the original plan was to designate local
party organs as channels of participation.
Two types of interest in land were created under the
Act. First, under section 4, the Minister may declare land
in sites and service schemes and of Council housing
estates as Statutory Housing Areas. The Statutory
Housing Area Plan indicates the area and dimension of
each piece or parcel of land....
…land in areas so declared may be let out on such
terms and conditions as approved by the Minister. The
land-holder is given a certificate of title in respect of
land used or occupied by the tenant or his bona fide
dependants. The Act restricts the letting of land to persons
engaged in the business of buying, selling, letting or
developing property.
Secondly, under section 37, land in the squatter
compounds may be declared Improvement Areas.
Former squatter settlers are issued with occupancy
licence. The licence grants the licensee the right of
occupancy for a period of not more than thirty years,
with the possibility of being extended or renewed for a
further period. The licensee occupies the land under and
immediately adjoining the house numbered in the
Improvement Area Plan. Sub-letting of owner-occupied
houses is not prohibited but needs approval from the
Council. If the licensee wants to sell his house he has to
request the transfer of the licence to the proposed
purchaser from the Council.29
Several issues call for discussion with this kind of
legislation. First, the Act is silent on the details of the
occupancy licence and the terms and conditions in the
certificate of title. Clearly, the Minister and local
authorities are heavily favoured with this kind of
arrangement. At a casual glance, this may not raise any
problems. After all, urban land is a scarce resource; one
that calls for stewardship by public agencies who are
able to balance short-term interests against long-term
needs and balance the claims of one interest group against
the other. On the other hand, it must be realised that
29
S. 42 of the Housing (Statutory and Improvement Areas) Act, Cap 441 (now Chapter 194 of the Laws of
Zambia).
because of the high stakes and economic significance of

investments in land and buildings, the blanket powers
given to the Minister and local authorities may be
susceptible to abuse.
In situations where high standards of civil service
competence and adequate salaries do not always exist,
temptation for corruption and favouritism is great. To
avoid this problem, a considerable level of sophistication
and a high degree of integrity in the bureaucracy is
required. In default, licences may become marketable
commodities, with favourable terms being granted as a
hidden subsidy for deserving groups or individuals.
Secondly, the principal aim of the Act was to confer
security of tenure on the settlers. But under the Act
tenants in the two categories are treated differently. Is
there any justification for differentiating between
Statutory Housing Area tenant and Improvement Area
tenant? Unable to find any such justification, McClain
blames the problem on hasty drafting rather than on any
clear intention. He further points out:
There seems little justification for treating

the former squatter differently than the sites
and service tenant in terms of the rights
which each should have over the land he
occupies. Each contributes money or labour
or both in the construction of the house
occupied and while the wide variation in the
quality of building standards in the squatter
settlements poses a problem for upgrading,
the separate categories don’t appear to
contribute to the solution.30
There is a lot to commend in McClain’s observation. By

failing to provide reasonably equitable opportunities to
the two categories of tenants, the law reinforces existing
inequalities of wealth and opportunity in that tenants in
Statutory Housing Areas are able to use their certificate
of title as collateral for mortgages from the Zambia
National Building Society, whereas an occupancy licence
does not. Consequently, tenants in upgraded squatter
areas are denied access to credit.31
30
McClain, W.T., ‘Legal Aspects of Housing and Planning In Lusaka’, in G.W. & McAuslan, J.P.W.B. (eds),
Urban Legal Problems in Eastern Africa. Kanyeihamba. Uppsala: Scandinavian Institute of African Studies,
(1978), p. 77.
31
Collins, J., ‘Home Ownership Aspects of low-cost Housing in Lusaka’, in ibid.
Thirdly and most importantly, the mere granting of
security of tenure to the settlers only made them ‘better
squatters’. It is our contention that an essential condition
is the solution to the fundamental causes of ‘squatting’.
The depressed housing conditions of inhabitants of
squatter settlements are not the cause of the misery in
which squatter settlers find themselves but rather only
the visible expression of the manifold and serious
problems which squatter settlers have to face:
unemployment, underemployment, illiteracy, disease, high
birth rates, social dislocation and cultural disorientation.
The bulk of squatter settlers have been driven out of
rural areas by lack of economic opportunities and social
frustration with the drudgery of rural life resulting from
precarious and unfavourable conditions that encumber
the rural population. To that marginal existence must be
added the attractiveness of ‘twentieth century life’,
exuberant hopes of material betterment stemming from
the attainment of independence and the apparently
greater supply of goods and services in urban areas.
Clearly, there can be no long-term solution to the
existence of squatters without a solution to the
fundamental causes of rural-urban migration and its
concomitant overburdening of social services and facilities
in urban areas. The fundamental need is to situate urban
land policy within the broader policy content aimed at
reducing rural-urban disparities by redirecting future
investment and development away from the existing large
urban areas to smaller development zones, coupled with
a deliberate attempt at redressing structural imbalances
in the economy and synchronising development
programmes and strengthening agencies dealing with
urban growth and problems. At the same time, this is not
to lose sight of the fact that, given our socio-economic
conditions, the practical possibility of such a harmonious
blending or reconciliation is lessened by an acute shortage
of professional skills and uneven flow of budgetary
allocations and the urgency of taking action to cope with
the rapid pace of urbanisation.
By way of performance audit or evaluation, it is
submitted that the Act has had little impact on the lot of
squatter settlers. Today, almost ten years since the Act
was passed, the perimetres of our towns and cities are
still ringed by shanties and squatter compounds. It is not

difficult to sketch out the causes of the failure of the
Act.
First, the efficacy of the Act depends upon the ability
of local authorities to lay down the basic infrastructure
for sites and service schemes and squatter upgrading
programmes. The capital cost of providing such services
is very high. Because of the meagre fiscal resources
most local authorities can draw from, the tendency has
been to rely on existing municipal housing estates.
Further, in the provision of serviced plots, local authorities
may be required to compulsorily acquire land where the
proposed sites are privately held. This requires discussion
of the law on compulsory acquisition of land for public
purposes.
During the colonial era, the Public Lands Acquisition
Ordinance32 empowered the Governor to compulsorily
acquire land for public purposes. But the exercise of
such power was tightly circumscribed in that the
Ordinance did not provide simply a general public purpose
formula but the purposes or occasions themselves were
authoritatively enumerated in the Ordinance itself.33
This introduced a static element in the law. As
Dunning rightly points out: ‘An enumeration of public
purposes means that the list must be changed each time
the government contemplates putting its eminent domain
power to a new use.34
The Independence Constitution,35 while entrenching
the right to private property, also recognised the right of
Parliament as part of its legislative omnipotence to
authorise the compulsory acquisition of land under the
public utility principle upon payment of compensation.
The entrenched clauses were removed under the
Constitution of Zambia (Amendment) Act of 196936
pursuant to the referendum of the same year. After the
amendment, the Lands Acquisition Act37 was enacted.
This Act was conceived as a radical departure from the
Ordinance in that the exercise of powers of compulsory
32
Chapter 87 of the Laws of Northern Rhodesia.
33
Ibid., s. 2.
34
Dunning, H.C., ‘Law and Economic Development in Africa: the Law of Eminent Domain’, Columbia Law
Review 68 (1968), 68.1286 at 1295.
35
36
The Constitution of Zambia (Amendment ) (No. 5) Act, 1969.
37
Chapter 296 of the Laws of Zambia (now chapter 189.)
THE INFORMAL LAND TENURE IN ZAMBIA – THE HOUSING
acquisition is not shackled by an authoritative enumeration
of the purposes for which land may be compulsorily
acquired.
The Act does not deny the justice of requiring
compensation for the compulsory acquisition of private
property. But the Act restricts the payment of
compensation to only developed and utilised land, never
for undeveloped and unutilised land.38
In terms of squatter upgrading schemes, the major
problem faced by the councils is how to raise money not
only to compensate landlords where compensation is
payable for their land compulsorily acquired but also the
squatters themselves for their condemned houses. A case
in point here is that of the Ndola Urban District Council.
For some time now the Council has been desirous of
resettling residents of Chipukukusu shanty compound on
a new site. The Council has to find money to service the
planned site and also to compensate the resettled
residents.
Councils also face cumbersome and tedious
procedures in the acquisition process. The general view
is that these procedures act as a ‘drag’ on the public
assembly of land for squatter resettlement, thus rendering
the Act mechanically ill-adapted to the needs of rapid
urbanisation. There are indications that the government
is aware of the effect of the cumbersome procedures
on compulsory acquisition of land. There are, however,
no indications that reforms are `in the pipeline’.
To the problem of public assembly of serviced plots
must be added the related problem of lack of knowledge
about possibilities of overcoming financial constraints on
the part of the tenants themselves. We have already
pointed out that certificates of Title issued in respect of
property in Statutory Housing Areas qualify as collateral
for mortgage purposes. It is not clear whether tenants in
these settlements use their secured property to acquire
mortgage advances. But even where such a possibility
exists, most buildings in the sites and service schemes
may not meet the stringent standards demanded by
property valuers before a mortgage advance can be
secured. To this operation of mortgage laws must be
38
S. 15 of Lands Acquisition Act, Chapter 296 of the Laws of Zambia.
added prohibitive conveyancing costs and service

charges.
In the final analysis, without a grass-roots type of
mortgage institution to cater for the peculiar needs of
squatter settlers, they are effectively denied access to
credit for housing development…
Conclusion
The problem of uncontrolled and unplanned settlements is

common to all the big cities of the Third World. So far public
policy responses to the problem have failed to produce a lasting
solution. Public housing schemes have failed because of lack of
funds. Sites and service schemes and squatter upgrading
programmes have not had the desired results. In Zambia, we
have seen that in spite of comprehensive plans to deal with the
problem, there still persists a yawning gap between declaration
of intent and actual achievement.
At the same time, the terrible human need in the squatter
and shanty settlements, which is not susceptible to exact
mathematical formulation, cannot be allowed to be forgotten.
An essential condition is the realisation that such settlements
are not social aberrations but are essentially bridgeheads for
those who cannot secure accommodation in the formal sector.
With this in mind, institutional and political arrangements must
be made for giving the residents in shanty compounds and
squatter settlements access to affordable housing through the
provision of access to credit sources.
In the long term, as more people pour into the urban areas,
the land available for informal settlements is constantly shrinking,
thus causing more congestion and heightened social tension.
The fundamental need here is to stem the tide of migration to
the urban areas by reducing rural-urban disparities. Small rural
towns could be transformed into attractive magnets for migrants.
Private companies willing to invest in these ‘core regions’, could
be supported with budgetary concessions.
At the basic level, there is an overwhelming need to provide
food, clothing, shelter, education and health services to everyone
under conditions that promote full citizenship and dignity to all.
19.4 Case Law
(a) Squatters build at their own risk and if the owners of the
land withdraw their permission or licence or if they decide
to demolish a structure built in the absence of any
permission or other lawful relationship, the squatters’
losses though very much regrettable are not recoverable
in the court of law
In Namung’andu v. Lusaka City Council39, the plaintiff erected

a building on land belonging to the defendant. He had no
permission to do so. The defendants demolished the building as
a result of which electrical fittings, roofing sheets, window
frames, electric bulbs, doors and door frames were destroyed
with the rest of the building. The plaintiff claimed damages for
the value of the building but abandoned this claim during the trial
and proceeded solely with a claim for the value of the items
mentioned. The case is excerpted below.
NGULUBE, HIGH COURT COMMISSIONER: In this action, the plaintiff

claims damages for wrongful eviction and demolition of his house
in Chawama Compound, Lusaka.
There is evidence on record that Chawama Compound is
situated on what was originally state land but which land has
now been assigned to the defendant Council. A large number of
persons had taken possession of the land and built their dwellings
thereon. In popular parlance, the land was occupied by squatters.
A few years ago, the Government appointed the defendant
Council to carry out a squatter settlements upgrading and
improvement exercise. The Housing Project Unit was set up
under the defendant Council to execute such upgrading. There
is evidence that the squatters have no legal title and no possessory
title either but that they occupy the land by sufferance and
licence. The Director of the Housing Project Unit told this court
that there are plans to give the squatters a renewable thirty-
year occupancy licence in respect of the precise piece of land
on which each authorised squatter dwelling stands. There is
also evidence that no squatter may build, or rebuild, or extend
his house without the permission of the defendant.
The particular facts of this case are heavily disputed. The
plaintiff contends that he purchased the structure at the plot in
39
(1978) ZR 358.
question from another squatter in 1969, before the Government’s

Squatter Control Unit moved in to whom he started paying a
monthly rental of K1. The defendant’s Housing Project Unit
then came in when he was already occupying the house. The
house collapsed in the 1974 rains and in 1975 he started to rebuild
it using concrete blocks. No one told him to stop such rebuilding
and after the new house was completed and he was already
residing in it, he had to make a trip to Kitwe. He removed his
belongings. In his absence, the defendants demolished the house
and failed or neglected to give him his electrical appliances,
roofing sheets, window frames, electric bulbs, doors and door
frames. The defendant on the other hand contend that no house
existed on that particular plot and that the plaintiff was warned
against building his new house. The defendant further stated
that when it was decided to demolish the unauthorised house,
the plaintiff’s wife and workers were called in to witness the
demolition and to salvage whatever they required to save. The
plaintiff’s wife denied being called in at the demolition.
The defendants’ evidence was that the normal practice at a
demolition was to salvage doors and door frames, window frames
and any other materials which could be saved and give them to
the squatter concerned.
It is unnecessary to dwell at length on the disputed facts
because the determination of this case does not depend on them.
The evidence is clear that a squatter is a squatter and the
defendants can demolish unauthorised structures built without
their permission as indeed they can demolish existing structures
if, for instance, the site is required for roads or water mains in
the upgrading exercise. Even in the latter situation, the evidence
is that the defendant does not pay compensation. If it were
necessary to resolve the factual discrepancies, I would have no
hesitation in accepting the defence evidence which is that the
plaintiff had been warned not to build and that the structure was
incomplete at demolition. Even the plaintiff’s own evidence did
not convince me that the house was occupied. It was completely
empty except for some builders implements which both the
plaintiff and the defendant deposed to. The plaintiff’’s wife was
also talking about different period of time and she did not strike
me as being a truthful witness. The probabilities are that she
was present at the demolition. At least, she conceded that it
was she who wrote to the plaintiff about the demolition.
During the course of the trial, the plaintiff’s counsel, Mr
Lawrence, informed me that the plaintiff was conceding that he
had no legal or possessory title and that the claim was being
restricted to the goods which the defendant had agreed are
normally salvaged. The claim therefore is in relation to the
electrical appliances, roofing sheets, window frames, electric
bulbs, doors and door frames.
The whole legal basis for the plaintiff’s claim had originally
been in trespass to land. The law as I understand it is that a
person in adverse possession can sue for trespass any person
other than the lawful owner or a person acting on behalf of or
under instructions from the lawful owner. Where the plaintiff is
a squatter, that is a person in mere adverse possession, the position
in law appears to be that his want of title dis-entitles him to any
remedy in a court of law to which only a person with a legally
recognised proprietary or possessory right is entitled. This was
the position for instance in the case of Fabiano Humane v. D.
P. Chinkuli40 where both the plaintiff and the defendant were
squatters. As Scott, J, observed in that case (to which learned
counsel for the defendants has referred) ‘no one properly
advised would build without endeavouring to get a good
and legal title to the land. His failure to do so even if his
story is correct results in his loss.’
Precisely this state of affairs obtains in this case. The plaintiff
built a house without obtaining title of any kind from the
defendants, not even permission to occupy and build on this land
which was already settled by squatters. Indeed, learned Counsel
for the plaintiff had quite properly abandoned certain aspects of
the claim for this reason and after the Fabiano Humane case
had been mentioned to him. Unlike in the Fabiano Humane
case, one of the parties in this case was the owner’s agent and
is now the owner. The defendant’s position therefore is even
more unassailable. Squatters build at their own risk and if the
owners of the land withdraw their permission or licence or if
they decide to demolish a structure built in the absence of any
permission or other lawful relationship, the squatters’ losses,
though very much regrettable, are not recoverable in a court of
law.
I would observe, obiter, that times are changing. A day may
come and it may have come already when squatters will be in a
stronger position legally. I have in mind what DW1, the Director
40
1971/HP/407.
of the Housing Project Unit, said, namely that one day, squatters
in the upgraded areas belonging to the Council will receive
occupancy licences. Indeed, these squatters who have already
been allocated plots by the defendant or who have built or
continued in possession with the knowledge and permission of
the defendant will at least be able to plead licence as their title.
Such licence may result in a better deal for squatters as against
any persons other than the owners of the land. As against the
owners, the position would always depend on the terms of each
licence …
At the time of the decision in the above case, Chawama
Compound had not yet been declared an improvement area.
Chawama was declared to be an Improvement Area in 1979,
by virtue of Statutory Instrument No. 146 of 1979.
A number of provisions found under the Housing Act are
similar or identical to those found under the Lands and Deeds
Registry Act.41 Unlike under the Lands and Deeds Registry
Act, there is no provision in the Housing Act, that documents
must be registered within a specified time. The Lands and Deeds
Registry Act, as already pointed out does not apply to Statutory
Housing Areas and Improvement Areas. The Supreme Court
judgment excerpted below dealt with mainly one of the provisions
of the Housing Act. This is section 8 of Act which provides that
once issued, a Council Certificate of Title shall not be subject to
challenge except on the ground of fraud, misrepresentation or
mistake.
Gibson Tembo v. Alizwani [Supreme Court Judgment No. 6 of 1996]
[The facts appear from the Judgment of the Supreme Court]
... I have read the judgment of my learned brother Chirwa and

I respectfully concur with his final decision in this appeal. I should
like to comment on the argument put forward by Mr Maketo.
Mr Maketo on behalf of the appellant argued that the property
was in a recognised Improvement Area, and as such the relevant
section of the Housing (Statutory Improvement Area) Act, Cap
444,42 applied by virture of Regulation 35 of the Housing
(Statutory and Improvement Areas) Regulations. There was
no dispute as to this. It was then argued that the appellant was
41
See for instance Part III of the Act dealing with registration of titles, and part IV dealing with caveats.
42
Now Chapter 194 of the laws of Zambia
the holder of a Certificate of Title in respect of the property,
which, by virtue of s. 8 of the Act, could only be challenged on
grounds of fraud, misrepresentation or mistake. It was further
argued that any fraud referred to in the section must be found to
be on the part of a purchaser and not of a vendor. He argued
that the appellant was an innocent purchaser, and even if the
vendor, Mukoba, had been guilty of fraud such fraud was
irrelevant to the appellant’s title. I shall indicate later that in my
view the question of fraud does not apply in this case, but I
should comment that, were section 8 to apply, then the fraud
referred to must be the fraud of the purchaser - the holder of
the impugned Certificate of Title. If a wholly innocent purchaser
acquires a Certificate of Title his right to the property is not
affected by any fraudulent conduct of the vendor unless such
conduct had resulted in a third party’s acquiring rights of which
the purchaser has notice. In the latter case the purchaser would
not, of course, be wholly innocent. In general however, the
intention of the Act is to simplify conveyancing and to make it
safe for Certificates of Title to be relied upon. The conduct of
former vendors is therefore not material to the validity of an
owner’s Certificate. It is, however, material to the question of
whether or not the owner’s title is subject to an overriding interest
of a third party.
When considering the possible rights of the respondent in
this case it is useful to refer to the English Land Registration
Act, 1925. Although that Act does not apply in Zambia it is a
guide to the Law that does in fact apply. Section 70 sets out the
overriding interests which apply whether or not they appear on
the register or whether or not the registered proprietor knows
of them. One of these rights under s. 70(1) (g)is as follows:
(9) The rights of every person in actual occupation

of the land or in respect of the rents and profits
thereof, save where enquiry is made of such
person and rights are not disclosed.
Cheshire’s Modern Real Property (Ninth Edition) at p. 527

contains this comment:
An equitable owner in possession e.g. a purchaser

under a contract of sale, would be protected under
this heading even though he had caused no entry
to be made in the Register.
In Zambia, so far as this particular property is concerned, we

have our own legislation, that is to say, Cap. 441, but the rights
of the respondent in priority against the appellant are not
specifically dealt with. There is section 16 which provides as
follows:
16.Any document which is required to be registered

under the provisions of this Act and is not
registered shall be null and void: Provided that
nothing herein contained shall apply to the case of
any person who has notice of any such document.
The section does not apply in this case because a contract for
the sale of land may be registered, but is not required to be
registered. Mr Maketo argued that the first contract of sale
should have been registered, failing which it was null and void
within the terms of the decision in the case of Sundi v. Ravalia
LRNR (1949-54) Vol. V p. 345. That case related to a lease
for a period of over one year, which was not registered within
the due time required by the provisions of the Lands & Deeds
Registry Act. It was held to be null and void for all purposes.
By s. 48 of Cap. 441, there is provision that Cap. 287* shall not
apply to any land to which any part of Cap. 441 applies. Section
37 of Cap. 441 provided that, so far as Improvement Areas are
concerned, sections 6 and 7 of Cap. 441 shall apply together
with such other sections as the Minister may prescribed. In the
regulations made by the Minsiter, Regulation 35 provides that
there should be applied to Improvement Areas sections 8 to 25
and sections 33 to 36 of Cap. 441. There is no reference to
section 48, but, as some parts of Cap. 441 apply to the land in
question, Cap. 287 is effectively excluded. There is no provision
in Cap. 441 that documents must be registered within a specified
time, nor is there any requirement that a prior contract of sale
must be registered in order to be effective. Mr Maketo’s
argument, that the contract should have been registered and
that in default the contract is null and void, cannot succeed. It is
necessary, therefore to consider what is the position of the parties
with regard to their possible equaitable rights under the contract
of sale when applying the provisions Cap. 441.
The facts of this case are that the appellant had constructive
notice of the respondent’s interest in the land. Cheshire’s Modern
Real Property (Ninth Edition), at p. 65, contains the following
passage:
One object of investigating title is to discover
whether the land is subject to rights vested in
persons other than the vendor, and the equitable
doctrine of notice orders that a purchaser is bound
by any right which he would have discovered had
He made the ordinary investigations as sketched
above. Again, if he fails to make inquiries of third
persons who happen to be in possession of the land.
He is affected with notice of all equitable interests
held by them, as, for example, an option to purchase
the fee simple that has been granted to a lessee
already in possession.
Because of this constructive notice, if the land were not registered

land there is no doubt that the appellant’s title would be subject
to whatever equitable right was vested in the respondent. Under
the provisions of Cap. 441 the situation is no different. As
already indicated, there is no provision in the Act similar to that
in Cap. 287, that if such a right is not registered it is null and
void. The only such provision relates to documents which are
required to be registered, and even then, in the circumstances
of this case, the respondent’s rights would be protected because
the appellant had constructive notice. The situation is therefore
that the respondent has a right to enforce whatever right he has
in respect of the property. This does not affect the statement in
s. 8 of Cap. 441 that the Certificate of Title cannot be challenged.
The title is however subject to the rights of which the holder has
had constructive notice in the same way as the title would be
subject to any right entered on the register. Mr Maketo argued
that there had been no fraud in respect of which the Certificate
of Title could be challenged. I have already indicated that in my
view the question of fraud does not arise in this case. The only
question to my mind is whether the respondent has an
enforceable right.
In the course of his argument Mr Maketo said that Mukabo
had, or thought he had, rescinded the first contract of sale. The
question of what Mukabo thought he had done might be relevant
to the issue of fraud, but, the respondent’s equitable right depends
upon whether or not such rescission was valid. When the
respondent, in February, 1988, sent a telegram to Mukabo, calling
on the latter to attend at Lusaka to complete the sale of the
house, there had been no notice making time of the essence of
the contract. At that period there was severe and rapid inflation
in Zambia and, Mukabo would have been justified in calling for
early completion long before February, 1988, in default of which
a right to rescission could have arisen. However, as found by
the learned trial judge, no such action was taken and time was
never made of the essence.
The fact that no further action was taken by the respondent
did not affect his rights, because, as he was a purchaser in
possession, all that was required was the formality of completion
th
at the original purchase price (see Snell’s Equity (27 Ed.) at p.
596). I would find, therefore, that, at the time of the attempted
purchase by the appellant, the property was subject to the
respondent’s equitable right under the earlier contract of sale,
of which the appellant had constructive notice.
I would dismiss this appeal with costs to the respendent.
CHIRWA, JS: This matter was commenced by way of originating

summons in which the appellant prayed for a declaration that
property known as House No. 21 Block 37 George Compound,
Lusaka was his, vacant possession of the same and fair rent to
be paid by the respondent up to vacating and giving vacant
possession of the same. The background of the matter is that
the property in question is in an area declared as ‘The Housing
(Statutory Improvement Area)’ under Cap. 441 and was owned
by one Stephen Mwila Mukoba. In 1984, the respondent became
a tenant to part of this house. In 1986, the said Stephen Mwila
Mukoba decided to sell the house and this intention was known
to the respondent who expressed his willingness to purchase
the same. The then owner wrote a letter acknowledging the
offer from the respondent to buy the property at K5,000.00. To
this effect the respondent made the first payment sometime in
September, 1987 of K2,000.00 which was acknowledged by the
seller who was at this time in his village in Kasama District
having retired in Lusaka.
In acknowledging this first instalment the seller indicated that
the balance was K3,000.00. In order to pay for the property,
the respondent applied for a loan from his employers, AGIP
(Zambia) Limited and this was granted subject to the production
of title deeds. In February, 1988, the respondent sent a telegram
to the seller that the balance of the purchase price was ready
and asked him to come to Lusaka to collect it and, according to
his evidence in court, to conclude the deal and sign deeds of
transfer. The respondent’s employer in May, 1988, also wrote
the seller inviting him to come over to Lusaka to complete the
deal and confirmed that they had given the respondent a loan.
In June, 1988 the seller acknowledged the letter and indicated
that he was willing to finish the deal but that the balance was
K2,000.00 and not K1,000.00 and that the same was to be paid
before 15th July, 1988, or else he would increase the purchase
price. The respondent’s employers wrote the seller another
letter in November, 1988, imploring him to come over to Lusaka
to complete the deal and facilitate the change of ownership and
intimated that if he failed they would have recourse to the law
to change the ownership in view of his conduct. It does not
seem that there was any response to this letter but in May,
1991, the respondent received a letter from Messrs Luangwa
Chambers dated 29th April, 1991, in which they enclosed a
cheque in the sum of K6,000 purporting it to be a refund of the
‘deposit for purchase of the property’ stating that those were
their instructions from their client, the seller. The respondent
refused to accept this cheque. On the part of the appellant, it
was shown that in about March, 1991, he got involved in the
property and he agreed to purchase the same at K160,000.00.
He paid this amount and all legal formalities were completed
and change of ownership was completed from the seller to him
and an occupancy licence was issued to him by the Lusaka City
Council dated 19th March, 1991 and he then asked the
respondent to vacate the house as he wanted to occupy it and it
was only then that he discovered that the respondent had also
entered into contract with the seller for the purchase of the
same property. It should be noted that the appellant had visited
the house before the purchase of the house and that although he
did not inspect it he found that there were people in occupation.
He never made any inquiries from the people he found at the
house as to how they came to occupy it.
It is from these facts from both the appellant and the
respondent that the appellant decided to seek the declaration
already stated above. In arguing the appeal for the appellant,
Mr Maketo submitted that the learned trial Judge erred in that
he made a decision over a matter that was not before him,
namely specific performance. He argued that the issue was
not as between the vendor and purchaser as this was never
pleaded but between two innocent parties and to decide as
between them who was the lawful owner of the property
innocent parties in the sense that both had different dealings
with the vendor and were not aware of the other’s transaction.
The question was who was entitled to the property between the
appellant and the respondent and he argued that the appellant

had a superior claim over the property as against the respondent
and that the obtaining of the certificate or occupancy licence
under the Housing (Statutory and Improvement Areas) Act was
prima facie evidence of ownership and under section 8 of the
Act this cannot be challenged except on account of fraud,
misrepresentation or mistake. It was submitted that here there
was no fraud as the vendor had refunded the purchase price
paid by the respondent and that if there is any cause of action it
is for breach of contract between the respondent and the vendor
and does not affect the good title obtained by the appellant. It
was on this point that he further submitted that fraud had not
been pleaded and proved and therefore the appellant’s title cannot
be challenged. In this regard Mr Maketo referred the court to
a number of authorities amongst them were:
(a) SUNDI v. RAVALIA (1949) NRLA 345
(b) UPTON v. WALKER (1971) 192
(c) LAKE KARIBA BOATING v. KARIBA NORTHBANK
COMPANY LIMITED (1982) ZR 35
(d) SITHOLE v. STATE LOTTERIES BOARD (1975) ZR
106
For the respondent the learned Director of Legal Aid submitted
that statute law should be applied subject to equity. He submitted
that here there was a valid contract between the respondent
and the vendor and all what remained was to formally change
ownership from the vendor to the respondent and the respondent
did all in his power to facilitate this change but for the conduct
of the vendor who negated without notice and good reason. He
argued that at the time the vendor entered into contract with the
appellant, the vendor had no title to transfer and that the purported
transfer of title to the appellant was a fraud on the part of the
vendor and no good title passed to the appellant and therefore it
would be inequitable for the respondent to be denied title to the
property. He conceded that both the appellant and the
respondent are innocent purchasers of the same property but
that the respondent had a cleaner title as he acquired it, although
not registered, before the appellant. He therefore prayed that
the decision of the lower court should be upheld and the appeal
dismissed.
I have carefully considered the evidence before the trial court
on record and also submissions by Counsel. As I have outlined
already in the undisputed facts of this matter, there is no doubt
that originally the property in question was registered in the name
of Stephen Mwila Mukoba. That the said Mukoba entered into
agreement with the respondent to sell the said property to the
respondent and the respondent paid full price for it before March
1991 and that the said Mukoba was requsted to come to Lusaka
to effect change of ownership of the property from him to the
respondent but never did. However, sometime in March, 1991
the said Mukoba agreed to sell the same property to the appellant
and they proceeded and changed ownership certificate with the
Lusaka City Council on 19th March, 1991. On 29th April, 1991
some advocates, purporting to be acting for the said Mukoba
sent to the respondent a cheque of K6,000.00 as refund ‘paid to
our client as deposit for the purchase of the above mentioned
house’ (underlining our own) (above house referred to the
property in question).
Given this scenario, looking at the events and documents, I
agree with the learned trial Judge that to decide this matter one
has to look at the titles to the property and sequence of dealings
as between the appellant and Mukoba and the respondent and
Mukoba.
First I will deal with the dealings between the respondent
and Mukoba. The sale agreement was entered into on 12th
March 1986, and the respondent made various payments and
involved his employers in that he obtained a loan from them to
complete the transaction. By May, 1988, the said Mukoba
acknowledged various sums from the respondent and stated
that the balance was K2,000.00 and that that was due and if not
paid he would rescind the contract. The contract was not
rescinded and by letter dated 5th November, 1988, the
respondent’s employers wrote Mukoba that he should travel to
Lusaka to collect his balance and conclude the deal and facilitate
the transfer of the property to the respondent failure to which
they would apply to court to enforce the change. It is clear from
the facts, as supported by the documents that the respondent by
the end of 1988 had fulfilled his part of agreement and what
remained was for the said Mukoba to facilitate the change of
ownership. As between the transactions between the appellant
and the said Mukoba, these started in March, 1991, and
concluded the same month and change of ownership was effected
at the Council registry.
As between the appellant and the respondent it is no doubt
that they had no dealings between them. They both got involved
in the purchase of the same property from the said Mukoba. I
agree that under section 8 of the Housing (Statutory and

Improvement Areas) Act, Cap. 441 a Council Certificate of
Title issued by the registrar to any transferee of land is not subject
to challenge except on the ground of fraud, misrepresentation
or mistake. In tackling this problem I have to consider the parties
in these transactions involving offer and acceptance;
consideration; capacity to contract and ability to transfer good
title. From the facts of this case, there is no doubt that all
ingredients to form valid contracts were present except for the
ability to transfer good title and the learned trial judge correctly
identified this as the main issue of the case. From the facts of
the case the learned trial judge correctly concluded that as
between the respondent and Mukoba, Mukoba has a good title
to transfer to the respondent and that all formalities for a valid
contract were present. It is no doubt that it was Mukoba who
defaulted in completing the transaction by formally signing the
assignment to enable the respondent to register the property in
his name. This means that at the time the said Mukoba entered
into agreement for the sale of the property to the appellant, he
had no good title to the property to pass on the appellant. He
even misrepresented the facts to his advocate that the K6,000.00
he received from the respondent was a deposit towards the
purchase price of the property. All his messages and writings
were to the effect that the purchase price was K5,000.00
although later he increased it to K6,000.00 which increase the
respondent did not object to but obliged and paid. The transaction
between Mukoba and the appellants was concluded through a
misrepresentation and or fraud by Mukoba that he had a good
title to the property to pass on.
Further from the evidence of the appellant, I am satisfied
that he visited the house in question and found some people in
occupation. He never made any inquiries as to how those people
were in occupation of a house he had purchased. He never
inspected the inside of the house, he merely looked at it from
outside. As a prudent man, he ought to have inquired from the
people he found in occupation as to how they occupied the house
and if he did he would have been told that the house had been
bought from Mukoba so that any further feelings over the house
was tainted, he ought to have been put on alert. This put him in
a position of being not entirely innocent. He must have known
of Mukoba’s earlier dealings over the same house with the
respondent and therefore any dealings by Mukoba with the
appellant was a fraud and the appellant was aware of it and
therefore section 8 of the Housing (Statutory and Improvement
Areas) Act, Cap. 441 cannot be relied upon by the appellant.
The strong feeling that the appellant was aware of the sale
between the respondent and Mukoba is strengthened by the
unclear manner in which he got involved or how and when he
got to know that the house was on sale. Since section 8 of the
Housing (Statutory and Improvement Areas) Act cannot be set
up as Statutory proof of ownership of this property under the
circumstance of this case at common law the respondent has a
better title to the property. Not only was he in possession but he
infact carried out improvements to the same after he paid the
purchase price. It would even be inequitable to deprive him of
this property on the facts of this case. Mukoba, through fraud,
which fraud the appellant ought to have known, he fraudulently
transferred the title to the property to the appellant after he
consistently disregarded requests from the respondent to come
to Lusaka to facilitate the change of ownership to the property.
I note that unlike documents requiring registration under the
Lands and Deeds Registry Act which must be registered within
a stipulated time, there is no similar provision under the Housing
(Statutory and Improvement Areas) Act, Cap. 441; therefore
whatever documents were signed between Mukoba and the
respondent can be registered if there is any need.
On the facts of this case, I am satisfied that the learned trial
Judge was correct in arriving at the conclusion he did and would
dismiss this appeal. In dismissing the appeal I would order and
direct the Registrar at the Lusaka City Council Lands Registry
to cancel the memorial entered in the register transferring
property number 21/37 George Compound from STEPHEN
MWILA MUKOBA to GIBSON TEMBO and in its place to
enter the transfer of the said property from STEPHEN MWILA
MUKOBA to ALIZWANI WISIKESI. I award costs to the
respondent both in this Court and the court below to be agreed,
in default to be taxed.
CHAILA, JS: I have had an opportunity to reading the judgement

just delivered by my brother Chirwa, JS. I am in complete
agreement with the conclusion which my learned brother had
reached and I have nothing useful to add. I would also dismiss
the appeal with costs.
GARDNER, AJS: The order of the court is that the appeal is

dismissed. It is further ordered that the Registrar at the Lusaka
City Council Registry effects the change of ownership to property

in question to Alizwani Wisikesi, the respondent in this appeal.
Costs to the respondent both in this court and the court below to
be agreed, in default to be taxed.
19.5 Summary of Chapter Nineteen
This chapter has examined and considered the informal land

tenure in Zambia. In the Second National Development Plan
Government’s approach towards the squatter’s problem changed
from that of demolition to co-operation with the squatters. As a
result of change in Government thinking sites and service
schemes and squatter upgrading programmes came to be seen
as an integral part of housing policy. The necessary back up
legislation came into being in 1974 with the enactment of the
Housing Act. The Act was enacted to confer security of tenure
on squatters who lived under constant fear of forcible removal.
Two types of areas have been created under the Act. Under
section 4 of the Act the Minister may declare, by statutory order,
any area of land within the Jurisdiction of the Council to be a
statutory housing area. The interest granted in a statutory housing
area is a lease. As a way of granting security of tenure to people
living in unauthorised settlements, the Minister is empowered
under section 37 to declare an area within the jurisdiction of the
Council to be an Improvement Area. The ‘interest’ granted to
occupants in the improvement areas is designated as a ‘licence’.
Although Site and Service programmes were introduced, these
were inadequately funded. Consequently the proliferation of un-
authorised or unplanned settlements in almost all urban centres
continued unchecked while local authorities have failed to provide
them with such social amenities as water, roads and sanitation
43
facilities.
43
Government of the Republic of Zambia, Ministry of Finance and National Planning, National Development
Plan, - 2006-2010. Lusaka: Government Printer, p. 107.
759
Chapter Twenty
THE AFRICAN CONCEPT OF LAND

OWNERSHIP: The African Customary Land
Tenure
20.0 Introduction
The nature of title and interests or rights in land under African

customary tenure has not only exercised the minds of scholars
and researchers, but also the courts. Divergent views have been
expressed as to the nature of title, interests or rights in or to land
under the African customary tenure
The English concept of land ownership does not present itself
with much complications or misconceptions as the African
concept of land ownership or holding. In England, following the
Norman Conquest in 1066, all land is owned by the Crown and
no subject can have allodial title to land. Land is held of the
Crown either directly or indirectly on one or other various
tenures.1 According to Elias, African customary law of tenure
has no conception of land holding comparable to the English
idea of a fee simple absolute in possession or to a theory whereby
the ownership of all land in England is in the Crown alone and
everybody else holds his land only as a tenant of the King.2
This chapter examines the African concept of land ownership
and the nature of title to land and the interests that may subsist
under the African customary tenure. The chapter also considers
the role of chiefs in land matters under customary land tenure.
20.1 Meaning of Land Tenure
The word tenure, from the latin tenere = to hold, implies that
land ‘is held’ under certain conditions. Land tenure may be
described as a system of rules and practices under which persons
may exercise and enjoy rights in land or objects fixed immovably
on land. Land tenure is a relationship between the persons and
land which is exemplified through rights.
1
See sections 1.3.1 and 1.3.2 of chapter 1 of this book.
2
T.O. Ellias, The Nature of African Customary Law. Manchester: Manchester University Press (1956), p. 164.
On the complex character of land tenure, Meek has observed

that there are wide variations in the conditions under which land
may be held.
He observed that:
The occupiers may or may not be owners, and the

owners may or may not be occupiers. Land may
be held by landlords, leaseholders or peasant
proprietors. The landlords may be individuals,
companies or Governments. There are
innumerable forms of tenancy. They may be
tenants with full rights of occupancy, tenants for a
fixed term of years, or tenants at will. Where there
is a dual interest in the occupation of land, tenancy
may take the form of the system known as
metayage, whereby the proprietor receives a
proportion of the crops; or it may take the form of
labour or cash contributions. Land may belong to
a kinship or local group, the individual members of
which have rights of users only. It may belong
legally to the state, but in practice the occupiers
may enjoy all the privileges of proprietors. It may
be heritable and alienable, or heritable but
inalienable. It may be heritable by certain classes
of relatives only. It may be held subject to rules
for the prevention of subdivision and the promotion
of good husbandry. There is a common saying
that property is a bundle of rights, and to form of
property and to no form of property is this more
applicable than to land.3
Professor Bentsi-Enchill has observed that land tenure systems

represent relations of men in society with respect to that essential
and often scarce commodity, land.4 On the variations of land
tenure systems, Professor Bentsi-Enchill has observed thus:
That land tenure systems should and do vary from

community to community stands to reason and is
largely accounted for by the unique historical
development of political grouping and the
3
Meek, C.K., Land Law and Custom in the Colonies. London: Frank Cass and Co. Ltd (1968), p. 1.
4
Kwamena Bentsi-Enchill, ‘Do African Systems of Land Tenure Require a Special Terminology?’ Journal of
African Law, Vol. 9 No. 2 (1965), at p. 115.
THE AFRICAN CONCEPT OF LAND OWNERSHIP:
THE AFRICAN CUSTOMARY LAND TENURE 761
consequent variation of legal and institutional
structures in different polities.5
Professor Bentsi-Enchill has further observed that although the

actual patterns of land tenures differ from system to system,
there are certain uniformities of type in the relations involved
which makes it possible to apply a common scheme of analysis
to the different systems.6
20.2 Colonial Views7 on the Nature of Interests and Rights

under African Customary Holding or Tenure
During most of the early colonial periods in Africa, knowledge

of customary tenure in Africa was scanty. This was largely due
to lack of research on the subject. Various erroneous views
based on suppositions than fact were commonly expressed.
Sometimes what was known about one tribe was assumed to
be replicated throughout Sub-Saharan Africa. Often
generalisations were made to the effect that the African mode
of land holding was communal ownership. Examples of this can
be found in the obiter dicta of the Privy Council in Re: Southern
Rhodesia,8 Tijan v. The Secretary Southern Nigeria, 9 and
Sobhuza II v. Miller and Others.10
Writing in about 1945, Meek observed that many of the early
investigations on the native systems of tenure were vitiated by
unsound methods of approach, such as the use of abstract
questions; the answers to which were often given by interested
parties, instead of the concrete method of tracing the actual
history of the plots of land.11 Meek identified the other frequent
source error to have been the presupposition that native
conceptions of ownership must be basically the same as those
of Europeans.12
In Re: Southern Rhodesia, the Privy Council in delivering
its judgment commented on the nature of title to land of the
natives of Southern Rhodesia. The Privy Council used the level
of social organisation of a society as the measure of the property
rights of the indigenous people. The Privy Council commented
thus:
5
Ibid.
6
Ibid.
7
Mvunga refers to this as Colonial Attitudes. See Mvunga, M.P., Land Law and Policy in Zambia. Mambo Press
(1982), p. 24.
8
[1919] AC 211.
9
[1921] AC 399.
10
[1926] AC 518.
11
12
Ibid.
…it seems to be common ground that the

ownership of the lands was ‘tribal’ or ‘communal,’
but what precisely that means remains to be
ascertained. In any case it was necessary that the
argument should go the length of showing that the
rights, whatever they exactly were, belonged to
the category of rights of private property, such that
upon a conquest it is to be presumed, in the absence
of express confiscation or of subsequent
expropriatory legislation, that the conqueror has
respected them and forborne to diminish or modify
them.
The estimation of the rights of aboriginal tribes
is always inherently difficult. Some tribes are so
low in the scale of social organization that their
usages and conceptions of rights and duties are
not to be reconciled with the institutions or the legal
ideas of civilized society. Such a gulf cannot be
bridged. It would be idle to impute to such people
some shadow of the rights known to our law and
then to transmute it into the substance of
transferable rights of property as we know them.
In the present case it would make each and every
person by a fictional inheritance a landed proprietor
richer than all his tribe. On the other hand, there
are indigenous peoples whose legal conceptions,
though differently developed. are hardly less precise
than our own. When once they have been studied
and understood they are no less enforceable than
rights arising under English law. Between the two
there is a wide tract of much ethnological interest,
but the position of the natives of Southern Rhodesia
within it is very uncertain; clearly they approximate
rather to the lower than to the higher limit.13
As to the nature of native title to land not only in Southern Nigeria,

but also to other parts of the British Empire the Privy Council in
Tijani v. Secretary, Southern Nigeria observed thus:
…Their Lordships make the preliminary

observation that in interpreting the native title to
land, not only in southern Nigeria, but other parts
13
Supra note 7 Per Lord Summer at pp. 233 - 234.
of the British Empire, much caution is essential.
There is a tendency, operating at times
unconsciously, to render that title conceptually in
terms which are appropriate only to systems which
have grown up under English law. But this tendency
has to be held in check closely. As a rule, in the
various systems of native jurisprudence throughout
the empire, there is no such full division between
property and possession as English lawyers are
familiar with. A very usual form of native title is
that of a usufructuary right, which is a mere
qualification of or burden on the radical or final
title of the sovereign where that exists. In such
cases, the title of the sovereign is a pure legal estate,
to which beneficial, rights may or, may not be
attached. But this estate is qualified by right of
beneficial user which may not assume definite
forms analogous to estates, or may, where it has
assumed these, have derived them from the
intrusion of mere analogy of English
jurisprudence…in India, as in Southern Nigeria,
there is yet another feature of fundamental nature
of the title to land which must be borne in mind.
The title, such as it is, may not be that of the
individual, as in this country it is nearly always is in
some form, but may be that of a community. Such
a community may have the possessory title to the
common enjoyment of a usufruct, with customs
under which its individual members are admitted
to enjoyment, and even to a right of transmitting
the enjoyment as members by assignment inter
vivos or by succession. To ascertain how far this
latter development of right has progressed involves
the study of history of the particular community
and its usages in each case. Abstract principles
fashioned a priori are of but little assistance, and
are as often as not misleading… the instance of
Lagos the character of the tenure of land among
the native communities is described by Rayner, CJ
in the Report on Land Tenure in West Africa, which
that learned Judge made in 1898, in language which
their Lordships think is substantially borne out by
the preponderance of authority: “the next fact

which it is important to bear in mind in order to
understand the native land law is that the notion of
individual ownership is quite foreign to native ideas”
Land belongs to the community, the village or the
family, never to the individual. All the members of
the community, village or family have an equal right
to the land, but in every case the chief or headman
of the community or village, or head of the family,
has charge of the land, and in loose mode of speech
is sometimes called the owner. If there is to some
extent in the position of a trustee, and as such holds
the land for the use of the community or family.
He has control of it, and any member who wants a
piece of it to cultivate or build a house upon, goes
to him for it. But the land so given still remains the
property of the community or family. He cannot
make any important disposition of the land without
consulting the elders of the community or family,
and their consent must in all cases be given before
a grant can be made to a stranger. This is a pure
native custom along the whole length of this coast,
and wherever we find, as in Lagos, individual
owners, this is again due to the introduction of
English ideas. But the native idea still has a firm
hold on the people, and in most cases, even in Lagos,
land is held by the family, This is so even in cases
of land purporting to be held under Crown grants
and English conveyances. The original grantee may
have held as an individual owner, but on his death
all his family claim an interest, which is always
recognized, and thus the land becomes again family
land. My experience in Lagos leads me to the
conclusion that except where land has been bought
by the present owner there are very few natives
who are individual owners of land.14
In Sobhuza II v. Miller and Others, the Judicial Committee of

the Privy Council observed that the notion of individual ownership
was foreign to native ideas and that land belonged to the
community and not to the individual. The Judicial Committe of
the Privy Council observed thus:
14
(1921) AC pp. 402 - 405.
…To answer this question it is first necessary to
recall the true character of the native title to land
throughout the Empire, including South and West
Africa. With local variations, the principle is a
uniform one. It was stated by this board in the
Nigerian case of Amodu Tijani v. Secretary,
Southern Nigeria and is explained in the report
made by Rayner, CJ on Land Tenure in West
Africa, quoted in the case referred to. The notion
of individual ownership is foreign to native ideas.
Land belongs to the community and not the
individual. The title of the native community
generally takes the form of a usufructuary right, a
mere qualification of a burden on the radical or
final title of whoever is sovereign. Obviously such
a usufructuary right, however difficult to get rid of
by ordinary methods of conveyancing, may be
extinguished by the action of a paramount power
which assumes possession or the entire control of
the land.15
20.3 Reaction to Colonial Views
A number of researches on the nature of African customary

tenure were undertaken in the decade of 1940s and beyond.
These researches and the publications resulting therefrom have
disputed most of the colonial views as exemplified in the Privy
Council judgments referred to above.
20.3.1 Communal or Group Ownership of Land
It may be recalled that in Tijani v. Secretary Southern

Nigeria,16 Lord Haldane quoted the words of Rayner, CJ in
the opinion he gave in the case. He observed that:
The next fact which it is important to bear in mind

in order to understand the nature of land law is
that the notion of individual ownership is quite
foreign to native ideas; land belongs to the
community, the village, or the family, never to an
individual.
15
Per Viscount Haldane, at p. 525.
16
1921 AC 399.
Elias has scoffed at the suggestion or idea that the whole African
land holding or ownership was communal. He retorts thus:
The fallacy of so describing the African mode of

land holding arises, partly from the greater fallacy
underlying the doctrine of ‘primitive communism,’
and partly from an imperfect appreciation of the
exact nature of the concept in African legal
categories.17
According to Elias, the land holding recognised by African

customary law is neither ‘communal’ holding nor ‘ownership’ in
the strict sense of the term.
He opined:
The term ‘corporate’ would be an apter description

of the system of land-holding, since the relation
between the group and the land is invariably
complex in that the rights of the individual members
often co-exist with those of the group in the same
parcel of land. But the individual members hold
definitely ascertained and well-recognised rights
within the comprehensive holding of the group.18
On the member’s right to his holding Elias notes that :
A member’s right to his holding is in the nature of

a possessory title which he enjoys in perpetuity
and which confers upon him powers of user and
of disposition scarcely distinguishable from those
of an absolute free-holder under English law. His
title is, therefore, in a sense that of a part-owner
of land belonging to his family. He is not a lessee;
he is not a licensee; he is not, as is so often said, an
usufructuary. He pays tribute to nobody, is
accountable to none but himself, and his interests
and powers far transcend those of the usufructuary
under Roman law.19
Elias went on to further observe that:

17
18
Ibid., at p. 164.
19
Ibid., at p. 165.
Again, the individual’s holding does not come to an
end at his death; it is heritable by his children to
the exclusion of all others. In short, he is a kind of
beneficial part-owner, with perpetuity of tenure and
all but absolute power of disposition.20
Bentsi-Enchill has observed that although in the large number

of traditional African polities allodial title is regarded as being
vested in the community as a whole or in a chief as trustee for
all people there is still some element of individual ownership.
He observed thus:
Beneath the umbrella of this group title is a

progressive individualization of interests specific
to particular portions of the group-owned land and
vested in sub-groups and individuals. It is the
unapportioned areas which, like public lands
everywhere, remain under the direct supervision
of the appropriate group organisation. Over the
apportioned or occupied areas, the group title is
basically a reversionary or residual interest beside
being manifested in terms of jurisdiction or
administrative control. The interest of sub-groups
such as lineages and families in portions of the land
allotted to them is then less than allodial ownership
but as indicated already, its distance from allodial
ownership varies from community to community,
and in many is close enough to be negligible.21
According to Bentsi-Enchill, the words of Rayner, CJ (quoted

above by Lord Haldane in the opinion he gave) in Tijani case to
the effect that land in the indigenous land law belonged to the
community, the village, or the family and never to an individual,
were not true in that, under a group title there are distinct and
exclusive interests of sub-groups and individuals in portions of
such land occupied by them or allotted to their interests, which
are in many places as nearly comprehensive as the fee simple
estate of English law. The interest that is acquired usually endures
for as long as there are heirs to succeed the original allottee or
occupier unless he effectively abandons the land.22 This view
is not in any material respect different from Elias’ concept of
‘corporate’ system of land-holding espoused above.
20
Ibid., at p. 166.
21
Supra note 2; ibid., at p. 125.
22
Ibid., at p. 127.
C.M.N. White, a colonial Government land tenure officer in

Northern Rhodesia, conducted an official inquiry on the land
tenure system in all provinces of Northern Rhodesia, apart from
Barotseland. The conclusion from his findings were that land
was generally individually acquired and owned. He observed
thus:
… In general the sum total of rights which make

up the features of African Land Tenure in Northern
Rhodesia can only be regarded as equivalent to
individual tenure.23
Writing on the Gikuyu land tenure system, the late anthropologist

and first President of Kenya, Jomo Kenyatta, in reaction to the
views that land was communally or tribally owned retorted
thus:
The sense of private property vested in the family

was so highly developed among the Gikuyu but
the form of Private ownership in the Gikuyu
community did not necessarily mean the exclusive
use of the land by the owner or the extorting of
rents from those who wanted to have cultivation
or building rights. In other words, it was a mans
pride to own a property and his enjoyment to allow
collective use of such property. This sense of
hospitality which facilitated the communal use of
almost everything, has been mistaken by the
Europeans who misinterpreted it by saying that the
land was under the communal or tribal ownership,
and as such the land must be ‘mali ya serikali’
which means Government property. Having coined
this new terminology of land tenure, the British
Government began to drive away the original
owners of land.24
Kenyatta went on to further observe that:
In Gikuyu society the system of land tenure can

only be by reference to the ties of kinship. It is no
23
White, C.M.N., ‘Factors Determining the Concept of African Land Tenure Systems in Northern Rhodesia’, in
Bigbuy (ed.), African Agrarian Systems, at p. 364.
24
J. Kenyatta, ‘Facing Mount Kenya’, The Traditional Life of the Gikuyu. Kenway Publications East African
Educational Publishers Limited (1938), p. 26.
more true to say that the land is collectively owned
by the tribe than it is privately owned by the
individual. In relation to the tribe, a man is the owner
of his land, and there is no official and no committee
with authority to deprive him of it or levy a tax on
his produce. But in so far as there are other people
of his own flesh and blood who depend on that
land for their daily bread, he is not the owner, but a
partner, or at the most a trustee for the others.
Since the land is held in trust for the unborn as
well as for the living, and since it represents his
partnership in the common life of generations, he
will not lightly take upon himself to dispose of it.
But in so far as he is cultivating a field for the
maintenance of himself and his wives and children,
he is the undisputed owner of that field and all that
grows in it.25
From the various views expressed above it comes out clearly

that it would be incorrect and untenable to describe the overall
African system of land holding or tenure as communal or tribal.
Depending on the circumstances, the rights or interest could be
communal (such as grazing rights) individual, concurrent or
successive.
Some early writers or commentators unable to grasp the
cluster of rights or interests which could be involved in a given
situation under customary land tenure, attempted to make a
distinction that customary tenure involved the use or usufruct
of land in contrast to ownership. It has been noted that interests
or rights in land are capable of enduring for as long as there are
heirs to succeed the original allottee. In this respect customary
tenure is similar to the English fee simple estate which endures
as long as there is an heir.
In summing up the main characteristics of indigenous systems
of land holding Meek concluded thus:
Land is held on (a) a kinship, and/or (b) a local

group basis. Individuals have definite rights, but
these are qualified by membership of a family,
kindred and ward (or small village). Similarly, the
individual claims of families exist concurrently with
25
Ibid., at p. 311.
the wider claims of the clan or local group. Title,

therefore, has a community character. It is also
usufructuary rather than absolute. Land may only
be sold under conditions which do not conflict with
the rights of the kin or local group. The chief is
the custodian of land, but not its owner. The normal
unit of land ownership is the extended-family, or
kindred. Land once granted to a family remains
the property of the family, and the chief has no
right to any say in its disposal. This constitutes a
definite limitation on the conception of land as the
collective property of the tribe or local group. The
kinship basis of land holding ensures social stability,
but the absence of individual proprietary rights
prevents the raising of money on land and so is a
hindrance to development. Land may be pledged
and redeemed at any time. The principle of redeem
ability ensures that land shall not be permanently
lost, but it may be an impediment to progress since
no one will attempt to improve land of which he
may be deprived at short notice. The restrictions
on the sale of land, the limitation of possession to
the period of effective use, and the periodic re-
allocation of land, all ensures that land shall not be
uselessly withheld from cultivation or lost to the
community.26
Perhaps it is apt to conclude this part by quoting Professor Bentsi-

Enchill who pointed out that individual ownership of interest is
not a new phenomenon under African land tenure systems.
Professor Bentsi-Enchill observed thus:
Enough has been said, however, it is hoped, to

indicate that ‘individual’ ownership of interests in
land, some equal, some more,some less in quantum
than the fee simple of the English common law, is
not something that has to be introduced into African
tenure systems as a novelty; it is present almost as
a matter of necessity flowing from the fact that
groups are made up of sub-groups and individuals,
and that though the cattle of their several members
26
and sub-groups may be pastured on common or
public lands, they have always chosen to do their
farming not as the large group but at the level,
generally, of the individual household, and on
specific allotments exclusively held, generally in
perpetuity.27
20.4 Positions of Chiefs Under African Customary Tenure
Ndulo has observed that a chief is everywhere in Zambia

regarded as the symbol of residuary and ultimate control of all
land held by the tribal community and further that in a loose
mode of speech, is sometimes called its owner.28 Ndulo noted
that a chief holds the land on behalf of the whole community in
the capacity of a caretaker or trustee only and further that the
chief’s position was not comparable to the Crown’s position in
England, where by the ownership of all land in England is in the
Crown alone and everybody else holds his land only as tenant of
the Crown.29 Ndulo’s observations are in consonance with Elias’,
who observed that:
… African customary law of tenure has no

conception of land-holding comparable to the
English idea of a fee simple absolute in possession,
or to a theory whereby the ownership of all land in
England is in the Crown alone and everybody else
holds his land only as a tenant of the King.
The African chief or king has no such legal right,
even in theory; he enjoys only an administrative
right of supervisory oversight of the land for the
benefit of the whole community. If he requires a
piece of land, he must beg it of the individual holder
of it, if the holder has no immediate use for it. The
importance of stressing this point is the tendency
of certain African chiefs to assert a wrongful claim
to feudal, proprietary ownership to community land
whenever European concessionaires wish to
acquire it for mining purposes. Any compensation
money thus paid to the chief or the king personally
as absolute owner would be improper and the title
27
Ndulo, M., Mining Rights in Zambia. Lusaka: Kenneth Kaunda Foundation (1987), p. 78.
28
Ibid., p. 78.
29
Ibid.
obtained by the purchaser would be avoidable at

the best.30
The Mungomba Constitution Review Commission report of 2005

attempted to clarify the position of chiefs viz-à-viz the
misconception arising from the continued vesting of land in the
President under the Lands Act, of 1995. The Mungomba
Constitution Review Commission observed thus:
The Lands Act of 1995, as already stated, vests all

land in the President who holds the same in
perpetuity for and behalf of the Zambian people.
Further, this holding is for purposes of administration
and control by the President ‘for the use or common
benefit, direct or indirect, of the the people of
Zambia.’ This vesting, quite clearly, does not mean
that the President is owner, but rather that he/she
is trustee and administrator of the land. The
President, therefore, does not own beneficial and
proprietary interests; what the President has are
powers of regulation and administration. In the
same manner that there is misunderstanding with
regard to the President, so has the confusion spread
to chiefs. While chiefs can own land in their
individual capacities, it is a misconception that they
own all Customary land situated in their respective
geographical areas. A.N. Allot an authority on land
tenure in Africa, analyses this misunderstanding in
a helpful and instructive manner. He draws the
distinction between ‘interests of benefit’ and
‘interests of control.’ The former pertain to
beneficial interests, which vest title in the landlord.
The latter, however, pertain to control and
regulation. The chief and headman play the role of
control and regulation in acquisition of land and its
use and cannot therefore, can be regarded as
owner of the land.31 (sic)
As pointed out above by the Mungomba Commission neither

the chief nor a headman is a land-owning authority from whom
30
Supra note 1, at p.165.
31
See Interim Report of the Constitutional Review Commission, Lusaka, Government Printer, at p. 766.
all estates are derived. The case of Mwiinda v. Gwaba32
excerpted below does exemplify the point that a village headman
is not a land-owning authority. He, like the chief, merely performs
the role of control and regulation in the acquisition of land and
its use.
Mwiinda v. Gwaba (1974) ZR 188
[The facts of the case appear from the Judgment of CULLINAN, J]
The plaintiff’s claim is for damages for wrongfully entering the

plaintiff’s land and ploughing thereon, for an injunction restraining
the defendant from a repetition thereof, and for determination
as to the ownership of any crop at present on the land. The
plaintiff, a farmer aged fifty-eight years, testified that he came
to Chikonga village in 1929. He was then thirteen years old. He
married the niece of Joseph Chongo. The latter had inherited
land from his father headman Chikonga. In 1940, when the
plaintiff was twenty-four years of age, Joseph Chongo allocated
some of his land to Joseph Kabangu, Nelson Kanyama and the
plaintiff - all of them relatives. The plaintiff thus acquired some
seventy to eighty acres and since that date had ploughed
approximately sixty acres thereof. In November, 1972, there
was no grass in the usual village communal grazing area and so
he decided to seek better grazing over the river near Rusangu
Secondary School. He moved his cattle to that area during the
months of November - December 1972, and January, 1973. He
continued to reside at Chikonga village, keeping three herdsmen
herding the cattle across the river.
On the 26th January, 1973, the defendant, who was headman
of the Chikonga village, completed a Change of Village form
under section 4 of the Registration and Development of Villages
Act, 1971, and sent it to the plaintiff by hand of a schoolboy.
The plaintiff had at no time indicated that he wished to change
villages. When he approached the defendant in the matter, the
latter stated, ‘I am removing you from your village to Rusangu.’
The plaintiff approached Chief Ufwenukwa; the latter stated
he was not concerned with the paper and did not want the
plaintiff to move from the village. Despite this, however, the
defendant in November, 1973, ploughed a total of three plots
consisting of twenty acres of the plaintiff’s land and planted
32
(1974) ZR 188.
maize and sweet potatoes thereon. The defendant also broke

the wire surrounding a night paddock for cattle and planted
groundnuts therein. Ephraim Kabunda gave evidence for the
plaintiff. He stated that when Joseph Chongo died his inheritance
did not automatically pass to his son Reuben Chongo, but instead
passed to the witness and to his family. As the witness has
sufficient land of his own the plaintiff thus remained in possession
of the land given to him by Joseph Chongo. Mr Kabunda stated
that the plaintiff had never left the village and that when he
visited him during the relevant period, he found him living at the
village with his wife and children, with his cattle grazing on the
other side of the river at Rusangu.
The defendant’s version was altogether a different one. He
stated that Chief Ufwenukwa had told him, in the presence of
the plaintiff, that the latter had informed the chief that he wished
to move from Chikonga village. Both the chief and he had tried
to dissuade the plaintiff from moving but, the plaintiff had
persisted. The Chief remarked, ‘Don’t come and say we moved
you from the village; you have moved on your own’. The plaintiff
moved thereafter in October, 1972, to Rusangu and built a house
there, in which he resided. The plaintiff’s wife remained behind
in the village; she had refused to go with the plaintiff as they had
had a quarrel; the plaintiff locked the house in the village and
she lived elsewhere. On the instructions of the chief he issued
the Change of Village form on the 26th January, 1973. As the
plaintiff had left the village the land reverted to the headman
and he was entitled to allocate it to others or possess it himself;
he had taken only a small strip of land adjoining his own land.
He admitted that when a villager returns to a village he can be
reallocated land by the headman but, as the defendant remarked,
‘he comes as a stranger’.
Peter Malambo, a teacher in the Ministry of Education,
testified that when he was transferred to Rusangu Primary
School, he made an application to purchase land at Rusangu.
The plaintiff at the time suggested that they purchase a plot
jointly. The witness was informed that his application was
successful but at the time no conveyance as such had been
executed. Apparently the plaintiff’s application was unsuccessful.
He found the plaintiff grazing his cattle on the land at Rusangu
where he had built a hut. The hut was merely a pole and mud
hut and was not of the same permanent nature as the plaintiff’s
concrete house, with corrugated iron roof, in which he resided
at Chikonga village. Another witness, Enos Mulunda, testified
that he was present when the chief had said, in the presence of
the plaintiff, that the latter wanted to move away from the village.
Thereafter the witness’s evidence was mainly hearsay.
Quite the most impressive witness to come before the court
was Chief Ufwenukwa himself; he gave his evidence in a calm
and dispassionate manner, which evidence I completely accept;
it is very much in conflict with that of the defendant. The chief
stated that the plaintiff had approached him informing him that
he wanted ‘to find a piece of land at Rusangu, for grazing’. He
had also said that if he was successful in his quest ‘he would
come back and talk’. The chief had given no instructions to the
defendant to complete a Change of Village form and, indeed,
considered the form to be invalid in as much as it did not bear
his signature or stamp (this is not necessary under section 4 of
the Act). As far as he was concerned, the plaintiff had not moved
to another village and therefore remained a villager of Chikonga
village; indeed, even if he moved to a farm or to Lusaka he
would still remain a villager. The headman had asked him, ‘What
do you do when a person leaves the villages?’ and he said, ‘You
wait until he returns and declares his intentions.’ He opined that
when a headman allocates land it is not his land as such to give;
that when a villager returns to a village he uses the same land as
he used before and that while the plaintiff had been away in
Rusangu the land had belonged to no one else, as to all intents
and purposes the plaintiff was still at home. The plaintiff left in
October, 1972 and was away for some months; his wife remained
behind in the village; as far as he was concerned she had had no
quarrel with the plaintiff as invariably a wife would approach
him in the event of such a dispute. The plaintiff used to visit his
wife at the village. After he had come back he had shown the
Change of Village form to the chief. Shortly after that again the
defendant had approached him and informed him that the plaintiff
was back and that the villagers had elected him as assistant
headman. The chief pointed out that it is the villagers who would
make such an appointment, the chief merely approving; the
villagers must obviously select an inhabitant of the village for
such appointment. When the plaintiff approached him
complaining that the defendant was working on his land he had
told the defendant not to use the land as the owner was back.
The defendant stated he was going to think about the matter but
he had ignored the chief’s instructions.
The plaintiff admitted he wished to purchase a plot of land at

Rusangu with Mr Malambo but stated that he did not intend to
move away from the village. It seems to me that the truth in this
case is to be found in the chief’s evidence, namely that the
plaintiff left the matter of his moving from the village open until
such time as he had purchased the land. I do not accept the
defendant’s evidence that the plaintiff’s wife refused to
accompany him and that he closed up the household in the village.
I consider his residence at Rusangu was obviously of a temporary
nature. In any event, whatever his eventual intentions were in
the matter it seems to me unrealistic to suggest that he had
permanently moved from the village before his application to
purchase the land had been dealt with and, indeed, before any
conveyance was executed in the matter. Meanwhile, the plaintiff
was apparently entitled to graze his cattle on the land; indeed,
even the defendant himself admitted that “all Chikonga cattle
go to graze at Rusangu but not to move away from the village.”
I cannot say that the defendant impressed me as a witness. His
evidence is not corroborated by his own witness, Chief
Ufwenukwa. His motives in issuing the Change of Village form
are questionable. Under section 4 of the Act the issue of the
form does not arise until such a time as the villager becomes an
inhabitant of another village, whereupon the headman is obliged
to inform the headman of the village of which he has become an
inhabitant. The form in question is addressed, not to a headman,
but to ‘the Farm Manager, Rusangu Secondary School’. It would
appear from the form itself that neither the chief nor the District
Secretary received a copy thereof. The issue of the form some
three months after the plaintiff had commenced grazing his cattle
at Rusangu is, to say the least of it, rather unusual. The defendant
stated that he issued it in order to protect the plaintiff from attack
by people at Rusangu. I feel that it was somewhat late in the
day for him to think of such protection, particularly when it seems
the plaintiff had by then returned to Chikonga village. Even if
one accepts the defendant’s evidence that as headman he was
entitled to dispose of the plaintiff’s land even by taking it unto
himself, the question arises as to why he should so allocate it
when, on his own evidence, some three strangers had meanwhile
settled in the village and required land, and more important, when
the plaintiff himself had meanwhile returned and had continued
ploughing on one and one half plots of his own land.
The question of whether or not the plaintiff continued to be a
village ‘inhabitant’ as defined in the Act, 1971, arose during the
hearing. The word is defined as follows:
Inhabitant means a villager who has attained the

age of 14 years and who habitually and in fact
resides in a village.
I would consider that, even though the plaintiff during the material
time was not physically present in the village, he nonetheless
resided as such at the village: the hut at Rusangu was a makeshift
one, his permanent home, his wife and family remained at the
village where indeed he still ploughed some land. In any event,
whether or not he was an inhabitant of the village for the purposes
of the Act is not important. What is important is whether or not
under customary law he was regarded as an inhabitant of the
village and whether as a result he still retained a right over his
land. At this stage I would like to express my appreciation of the
learned advice which the assessors gave to the court on the
issues involved. Such advice was tendered in open court as
follows:
Mr Edward Jericho Mulenga:
The issue concerning people transferring from a

village: when a man moves from a village, the land
he was ploughing or the land he was given to settle,
that land remains the property of the headman. It
is the headman who is going to be approached to
allocate land. If a person wants to come back there
is nothing to stop him coming back to a registered
village. If a man leaves the village for a short time
before he has given indication of leaving
permanently he is still called a villager unless he
informs the headman he will never return to the
village. If the land was given as an inheritance it
remains in the hands of those to whom it was given.
If a man moves away from a village leaving his
wife and children that land remains with him as he
leaves his wife to tender the fields.
Mr Phillip Kapasa:
I concur with what has been said by Mr Mulenga.

If a man leaves from the village and has not been
given documents for his Chief and his new Chief,
he is still counted as a villager from whence he
came. If he goes away to a farm he goes away as
a worker and he is regarded as a villager of the
village from whence he came. If a man goes away
for work for about two years and dies at that place
of work we bring his body back for burial as he is
still regarded as a man of that village.
Mr Andrew Mwiiya:
As a Tonga man, a person who had lived in a village

for a length of time is not a stranger to that village.
When I talk of a stranger I talk of a person with 12
months’ residence. When I speak of a villager I
mean a person with 12 to 14 years’ residence. If
he wants to move he approaches the headman who
will tell him to go or take him to the chief. Then
they will talk. That sort of transfer would be
observed. If he is not happy then he can come
back and be accepted. Any land he had left if he is
a big man with a family he will use that land as he
left it. I am not sure whether it is the thing that he
who lived in a village for a long time goes away
for a short while and comes back and is treated
like a stranger; that man is treated like a member
of the village and goes back to his original land and
uses it.
It will be seen that the advice of all three assessors on the issue
in hand is unanimous. Furthermore, although Chief Ufwenukwa
was not called as a witness by the court, nonetheless, for the
purposes of section 34 (1)(a) of the High Court Act I would
consider him to be a person who has special knowledge of the
relevant customary law. His opinion in the matter also coincided
with that of the three assessors. I find that I have no difficulty
whatsoever in readily conforming to such learned opinions. I
find that the plaintiff never ceased to be an inhabitant of the
village and retained his customary rights over his land and that
the defendant wrongfully entered, ploughed and planted
thereon….
The plaintiff testified that the defendant had left a crop of
sweet potatoes on the land. I declare that the ownership in such
crop lies in the defendant. I grant an injunction to the plaintiff
restraining the defendant from entering upon the land of the
plaintiff except for the purpose of removing the aforesaid crop.
On the question of security of tenure under African customary

holding, Professor Bentsi-Enchill has observed that security of
tenure is not intrinsically a problem in most systems of land
tenure in sub-Saharan Africa.33 He further observed that:
The ‘tenant’ in general is a peasant proprietor,

entitled to farm the same land for his whole
lifetime…and generally to pass on his property to
his heirs and successors.34
Customary tenure is analogous to freehold. The rights in land

recognised by the Customary law resemble an English freehold
made determinable upon abandonment of the land. They are
rights to occupy land which devolve upon successors ad
infinitum until abandoned. Abandonment can generally be
established when it can be shown that there is no intention to
use the land either presently or in future.35
Meek has observed that there is absence from native
customary law of any ‘statute of limitation’ within which claims
over land, or indeed anything else, can be asserted or enforced.36
Generally, the right to acquire land under Customary tenure
in Zambia vests in individuals by reason of their being legitimate
residents in a given area within which they exercise these rights
of acquisition. The right to acquire land can be seen as inhering
in the membership of a community. Once the requirements
relating to legitimate residence are satisfied individuals may
acquire land in a number of ways.37 These are briefly discussed
below:
33
34
Ibid.
35
See the Mwiinda v. Gwaba. This case is excerpted above.
36
Supra note 3, at pp. 24 - 25. See also the observations made under section 17.14 of chapter seventeen under
the case of Lumanyenda dealing with adverse possession.
37
Supra note 7.
(a) Direct Acquisition
An individual may acquire land by opening up and using a parcel

of land over which no individual has already prior established
rights, or if any earlier established rights have already elapsed
or been abandoned in respect of such piece or parcel of land.
This is still the most usual method of acquiring land under
customary tenure in Zambia.38
(b) Transmission and Succession: Inheritance
Generally under Customary tenure in Zambia the individual’s

holding does not come to an end at his death. The same is
inheritable by kinsmen depending on the Customary law of the
area or district.
(c) Transfer Inter vivos
An individual who has already acquired rights over a parcel of

land may transfer those rights to another in any of the following
ways:
(i) temporary transfer by way of loan of the land; or
(ii) outright transfer by way of gift or exchange,39 or
(iii) sale.
According to Mvunga there is generally no sale of land under
customary tenure in Zambia. What is sold are the improvements
on the land as opposed to land itself.40 However, White has
observed thus to the contrary:
The Conception that Africans do not sell land cannot

in my view be sustained. A sale is merely an outright
transfer for valuable consideration in form of cash;
a gift is an outright transfer in which the
consideration takes the form of goodwill between
kinsmen or neighbours. Sale is therefore a simple
development within a cash economy, and not a new
and revolutionary principle, given the type of
structure of villages found in Northern Rhodesia.41
38
See The Land Report 1967, at p. 47.
39
Ibid.
40
41
C.F. White, ‘Factors Determining the content of African land-tenure systems in Northern Rhodesia’ African
Agrarian Systems, p. 365.
White further observed that to attempt to distinguish a sale of
land from a sale of improvements is to attempt a false distinction.
One cannot be transferred without the other. The buyer acquires
rights over both the improvements and the land on which they
have been effected. 42 Owing to increasing population and
increasing acreages under cultivation land has become a valuable
and scarce commodity. Sales of land can no longer be ruled out
under customary tenure in Zambia. It should also be borne in
mind that customary law is not static. Changes do take place
within the realm of Customary law. An illustration of this change
can be found in the case of Wokoko v. Molyko,43 where a
Nigerian court had to decide whether at Buea in the Cameroon
sales of land had replaced the previous practice of not selling
land. The court held that custom was not static and that sales of
land had superseded an earlier practice of not selling land.
20.5 Summary of Chapter Twenty
This chapter has examined and considered the concept of land

ownership under African customary tenure. Various views on
the nature of title, interests or rights in land under African
Customary holding or tenure have been discussed and examined.
From the various views examined, it would be incorrect to
describe the overall African system of land tenure as communal
or tribal. Depending on the circumstances the rights or interest
under customary tenure could be communal, individual,
concurrent and/or successive. As observed by Bentsi-Enchill,
individual ownership of interest in land is not something that had
to be introduced into African tenure systems a novelty.
According to a research done or conducted by White, a
colonial land officer in 1959 in all provinces of Northern Rhodesia,
apart from Barotseland, land was generally individually acquired
and owned.
It is generally accepted that the position of an African Chief
or King is not comparable to the Crown’s position in England,
whereby the ownership of all land in England is in the Crown
alone and everybody else holds his land as a tenant of the Crown.
In Zambia, though the chiefs are sometimes in the loose mode
of speech referred to as owners of land, it is a misconception to
say that they own land. A distinction has to be drawn, as pointed
42
Ibid., at p. 51.
43
[1938] 14 NLRL 41.
out by Allot, between ‘interests of benefit’ and ‘interest of

control’. The chiefs and their headmen merely exercise interest
of control and regulation in the acquisition and use of land while
their subjects have beneficial interests in land. The case of
Mwiinda v. Gwaba to some extent illustrated this distinction.
783
Chapter Twenty-one
LAND ADMINISTRATION AND ALIENATION

IN ZAMBIA*
21.0 Introduction
This Chapter examines the land administration and alienation

system in Zambia with some emphasis on the institutional
arrangements. The land delivery system entails the identification
of land suitable for each land use, preparation of plans by
respective planning authorities and processing of applications
for title deeds.1 By land administration is meant the means
whereby and the terms upon which land should be made
available for use by individuals.2 Land administration may also
be described as a process of recording and disseminating
information about the ownership, value and use of land and its
associated resources. Such processes include the determination
or adjudication of rights and other attributes of the land, the
survey and description of these, their detailed documentation
and the provision of relevant information in support of land
markets. 3 Dale and Mclaughlin have observed that a land
administration system provides a mechanism that supports the
management of real property and that the process of land
administration includes the regulation of land and property
development, the use and conservation of the land, the gathering
of revenues from the land through sales, leasing and taxation;
and the resolution of conflicts concerning the ownership and
use of land.4 According to the authors, land administration
functions may be divided into four components, viz: judicial,
regulatory, fiscal and information management. The said authors
have further observed thus in relation to the said functions of
land administration:
These functions of land administration are

traditionally organised around three sets of agencies
* This Chapter was co-authored with Mr Frightone Sichone, a former Commissioner of Lands and Part-time Tutor
in Land Law, School of Law, at the University of Zambia.
1
The Draft Land Policy, Republic of Zambia, Ministry of Lands, July 2000, Lusaka, p. 12.
2
See the Johnson Land Commission Report, 1967, Lusaka, Republic of Zambia, p. 99.
3
Swedesurvey, Study Literature Strategic Planning and Management of Land Administration and Geographical
Information Organisations 12-23 May, 2003 in Gavle, Sweden, p. 6.
4
Dale and McLaughlin, Land Administration. Oxford: Oxford University Press (1999), p. 10.
responsible for surveying and mapping, land

registration, and land valuation. Each of these
agencies collects data and makes them available
to the public. The juridical component places
greatest emphasis on the holding and registration
of rights in land. It comprises a series of processes
concerned with the original determination or
adjudication of existing land rights, the allocation
of land, for example, through original grants from
the sovereign power, transfers, prescription, and
expropriation. Other processes address the
delimitation of parcels by defining the land for which
the rights are allocated, demarcating boundaries
on the ground, and describing these boundaries
graphically, numerically, or in writing. Over time,
the rights to land and the delimitation of parcels
may give rise to doubts or disputes and there must
therefore be further mechanisms for resolving
these. Adjudication is the dispute resolution process
while registration is the process of making and
keeping records of property rights. The regulatory
component is mostly concerned with the
development and use of land. It includes land
development and use restrictions imposed through
zoning mechanisms and the designation of areas
of special interest, ranging from historic districts
to fragile ecosystems. The fiscal component
focuses on the economic utility of land. Its
processes may be used to support increased
revenue collection and production, and may act as
incentives to consolidate or redistribute land or to
use land for particular purposes.
Information management is integral to all three
components described above: the juridical cadastre
underpins land registration; the fiscal cadastre
supports valuation and taxation; and zoning and
other information systems facilitate planning and
enforcement of regulations. Recognition that these
components share common information
requirements led to the concept of the multi purpose
cadastre as a community-oriented, parcel based
system for integrating land related information
collected and managed by different agencies. 5
5
Ibid., at pp. 10 - 11.
LAND ADMINISTRATION AND ALIENATION IN ZAMBIA 785
It has been observed that a good land administration system will:
(i) guarantee ownership and security of tenure;
(ii) support land and property taxation;
(iii) provide security for credit;
(iv) develop and monitor land markets;
(v) protect State lands;
(vi) reduce land disputes;
(vii) facilitate land reform;
(viii) improve urban planning and infrastructure
development;
(ix) support environmental management;
(x) produce statistical data.6
21.1 Brief Historical Background to Land Administration and

Alienation in Zambia
21.1.1 British South Africa Company Rule
The historical background of the land tenure system in Zambia

is dealt with under chapter eleven of this book. The 1911 Order
in Council resulted into the amalgamation of North Western
Rhodesia and North Eastern Rhodesia territories and the country
became one political unit under the name of Northern Rhodesia.
The territory continued to be administered by the British South
Africa Company (BSA Co.) under the powers conferred by its
Charter as augmented by the 1911 Order in Council. The 1911
Order in Council required the company to assign to the Africans
inhabiting Northern Rhodesia land sufficient for their occupation,
whether as tribes or portions of tribes, and suitable for their
agricultural and pastoral requirements. The Order in Council
expressly provided that it should not be lawful for any purpose
to alienate from the chief and people of Barotseland the territory
reserved for prospecting by virtue of the Lewanika Concessions
of 1900 and 1909. The Order in Council did not provide for
express powers to make grants of land to individuals, but it was
provided that a native could acquire, hold, encumber and dispose
of land on the same conditions as a person who was not a native,
but no contract for encumbering or alienating land the property
of a native would be valid unless the contract was made in the
presence of a Magistrate, and was attested by him, and bore a
certificate signed by him stating that the consideration was fair
6
and reasonable, and that he have satisfied himself that the native
the transaction.
The effect of the 1911 Order in Council, so far as it concerned
land administration, was that the country was divided into two
parts, viz: land within Barotseland and other land.7 Africans
outside Barotseland, were protected in their occupation of land
in that they could not be removed except after inquiry and by
order of the Administrator approved by the High Commissioner.
As regards land in Barotseland, the Litunga retained his authority
in tribal matters. The 1911 Order in Council contained no
provision vesting land in the BSA Co. During its rule, the BSA
Co. in exercise of its powers of administration made grants and
dispositions of land to non-native settlers. The grants took the
form of a ‘permit of occupation’, where upon on fulfilment of a
development clause by the tenant, freehold title was granted.
Despite the assurances under the Order in Council (this includes
the assurances under the 1924 Order in Council and 1928
Northern Rhodesia (Crownland and Reserves) Orders in
Council) that Africans could not be removed from their land
except after inquiry and by order of the administrator, grants of
land to settlers led to displacements of the Natives.8
21.1.2 Direct Rule
By the 1924 Northern Rhodesia Order in Council, the

administration of Northern Rhodesia was taken away from the
BSA Co. and entrusted to a Governor appointed by the British
Sovereign. The 1924 Order in Council continued the division of
land for the purposes of land administration into land within
Barotseland and other land.
Following the direct rule in 1924, grants and dispositions of
land were made by the Governor to non-natives under the express
powers conferred upon him by the 1924 Order in Council. Under
the 1924 Order in Council, the Governor was proscribed from
granting land in Barotseland. The rights of the natives to acquire
and hold land as non-natives was also preserved. Like the 1911
Order in Council, the 1924 Order in Council did not contain any
provisions vesting land in the British Sovereign or the Governor.
In order to secure the interests of the natives the 1924 Order in
Council provided thus under article 45:
7
8
See the Report of the Commission of Inquiry into Land Matters in Southern Province, Lusaka, Government
Printer (1982).
(a) No native could be removed from any kraal or from
any land assigned to him or her occupation except
after full inquiry.
(b) If any person without such order removed or
attempted to remove any native from any kraal or
from any land, unless in the execution of the process
of a competent court, was on conviction before the
High Court liable to imprisonment with or without hard
labour for any period not exceeding two years or to a
fine or both.
(c) The preceding provision did not limit or affect the
exercise by the Litunga of the Barotse of his authority
in tribal matters, or prohibit the removal of natives
from any kraal or land assigned to them, whether
such removal was authorised by any law for the time
being in force relating to public health, provided that
other suitable land was assigned to them in lieu of
that from which they had been removed; and
(d) It was not lawful for any purpose whatever to alienate
from the chief and people of Barotseland, the territory
reserved for prospecting. All rights reserved for the
benefit of the natives of Barotse were to continue to
have full force and effect.
By the 1928 Northern Rhodesia (Crown lands and Native
Reserves) Order in Council, two categories of land were created,
viz: Crown lands and Native Reserves. All rights of the British
Sovereign in or in relation to Crown land were vested in and
exercisable by the Governor who was empowered to make grants
and dispositions of Crown land to non-indigenous people. The
Native Reserves were vested in the Secretary of State and set
apart in perpetuity for the sole and exclusive use and occupation
of natives. The Governor was required under the Order in
Council, to assign land within each Native Reserve to Africans,
‘whether as tribes or portions of tribes.’ No person other
than a native could occupy any portion of a native reserve except
by special permission of the Governor with the approval of the
Secretary of State. In terms of tenure, occupation and interests
in Reserves, these were not available to non-natives except for
Christian missionaries (limited to thirty-three years lease) and
individuals(limited to a five year lease). In terms of the law,
interests and rights in Reserves were to be governed by
customary law, while English law and local statutes were to

apply to Crown land.
By the Northern Rhodesia (Native Trust Land) Order in
Council 1947, land described to the schedule thereto was declared
to be Native Trust land and vested in the Secretary of State to
be administered and controlled by the Governor, ‘for the use or
common benefit direct or indirect of the natives of Northern
Rhodesia.’ The Governor could grant a ‘Right of Occupancy’
of up to ninety-nine years to non-natives so long as in his
determination, this was in the general interest of the community
as a whole.
The three categories of land, viz.: Crown land, Native
Reserves and Native Trustland Reserves (State land, Reserves
and Trustland Reserves) continued after independence to be in
existence until up to 1995, when by virtue of the Lands Act of
1995, the Zambia (State land Reserves) Orders in Council 1928
to 1964 and the Zambia (Trust land) Orders 1947 to 1964, inter
alia, were repealed and Reserves and Trust lands were merged
into one and became known as customary area.
The Zambia (State lands and Reserves) Order 1964 and the
Zambia (Trust land) Order 1964, vested State land and Reserves
and Trust land in the President but provided that estates, rights
and interests granted before independence should continue to
have the same validity as they had before independence.
The Governor of Northern Rhodesia in making grants of State
land acted under the instruction of the Secretary of State. The
kinds of grants which the Governor of Northern Rhodesia was
authorised to make of land within the Reserves and Trustland
areas was prescribed by the Orders in Council. The broad policy
as to the kinds of grants which the Governor could make, the
persons to whom they could be made, and the conditions upon
which they were made, were laid down by instructions given by
the Secretary of State. As regards agricultural land within Crown
land, the conditions upon which grants could be made were
prescribed by the Agricultural Lands Ordinance.9
After independence in 1964, the President of the Republic
delegated his powers to make grants and dispositions of land to
the Commissioner of Lands subject to the directions of the
Minister responsible for land matters.10 The President’s powers
to grant and alienate land were circumscribed by the Zambia
(State land and Reserves) Orders 1928 - 1964, and the Zambia
9
Chapter 101 of the 1958 Edition of the Laws.
10
Statutory Instrument No. 7 of 1964. The Statutory Instrument was revoked by Statutory Instrument No. 4 of
1989.
(Trust land Reserves) Order 1947-1964 as well as the repealed
1975 Land (Conversion of Titles) Act. Before the enactment of
the 1995 Lands Act, land administration and control was governed
or regulated under the said Orders and Statute.
Under both the repealed 1975 Act and the current 1995 Lands
Act, all land is vested in the President who holds it in perpetuity
for and on behalf of the people of Zambia. Subsections 2 and 3
of section 3 of the Lands Act of 1995 empowers the President
to grant or alienate land vested in him to any Zambian or non-
Zambian subject to the conditions outlined under the section. By
the provisions of subsection 5, of section 3, of the Lands Act, all
land in Zambia is required to be ‘administered and controlled
by the President for the use or common benefit, direct or
indirect of the people of Zambia’. In alienating land the
President is required to:
(a) take such measures as shall be necessary to control
settlements, methods of cultivation and utilisation of
land as may be necessary for the preservation of the
natural resources on that land; and
(b) set aside land for forest reserves and game
management areas and national parks and for the
development and control of such reserves, game
management areas and national parks.11
Land matters in Zambia are dealt with or handled by a multiplicity
of institutions, including the Ministry of Lands, Local authorities,
the Resettlement Department in the Office of the Vice-President,
the Department of Physical Planning and Housing under the
Ministry of Local Government, the Land Use Planning
Department in the Ministry of Agriculture and Co-operatives
and the Zambia Wildlife Authority. There are also a host of
statutes dealing with land in Zambia. The institutions involved in
land administration and alienation and the roles they perform
are discussed below.
21.2 The Ministry of Lands
The Ministry of Lands is one of the Government ministries in

the Republic mandated:
To efficiently, effectively and equitably deliver land

and land information to all Zambians for its optimum
utilisation for the benefit of the Zambian people
and the Country.12
11
Section 3 (7) of the Lands Act, 1995.
12
Ministry of Lands Annual Report, Ministry of Lands, Lusaka, 2004.
In a bid to implement and improve the system of land

administration, the Ministry of Lands, in pursuit of its objectives,
intends to:
Formulate policies and provide guidelines for all,

coordinate and monitor land matters in the most
equitable and efficient manner; to effectively collect
revenue on land in order to contribute to
Government revenue; to provide an accurate,
national base and specialised mapping services; to
ensure the provision of effective and efficient
cadastral services; to provide up-to-date and timely
information in order to facilitate expeditious land
transactions and enhance public awareness of their
rights regarding land; to maintain an efficient and
effective administrative support service and
continuously develop human resource so that the
Ministry provides its services effectively and
efficiently.13
Gazette Notice Number 547 of 2004 provides for the functions,

portfolios and composition of the Government of the Republic
of Zambia. The Gazette notice provides the following (citing
only what is relevant for our purposes):
IT IS HEREBY NOTIFIED for public

information that-
(a) the allocation of subjects to portfolios shall

be as set out in the First Schedule hereto;
16. MINISTRY OF LANDS

Subjects:
Lands policy
Land administration
Land surveys and mapping
Cadastral survey and exploration
Control of unauthorised settlements
Registration of Lands and Deeds
13
Ministry of Lands Objectives, Ministry of Lands Annual Report 2002.
Statutory Bodies/institutions:
Agriculture Lands Board
Compensation and Advisory (Land
Acquisition)
Survey Control Board
Land Development Fund
Lands Tribunal
In terms of operational structure, the Ministry of Lands has

three departments, viz: the Lands Department, the Survey
Department and the Lands and Deeds Registry Department.
Each of these departments play specific roles ranging from the
provision of Policy guidelines in land administration, the
identification and allocation of Land as well as the Surveying
and registration of rights and interests in land.
21.2.1 Lands Department: Office of the Commissioner of Lands
The Lands Department is headed by the Commissioner of Lands.

The department deals with land identification and allocation.
The Commissioner of Lands exercises the power to make grants
and dispositions of land and executes Presidential leases on behalf
of the President in whom all land is vested. This authority is
specifically bestowed on the Commissioner of Lands by the
President through derivation of delegation under the Statutory
Functions Act.14
By Statutory Instrument Number 7 of 1964 the President
delegated his powers and functions of land administration and
allocation to a public officer for the time being holding the office
or executing the duties of the Commissioner of Lands. Statutory
Instrument No. 7 of 1964 was revoked by Statutory Instrument
No. 4 of 1989 which provides in part:
IN EXERCISE of the powers contained in Article

10A of the Zambia (State lands and Reserves)
Orders, 1928, to 1964, and Article 10A of the
Zambia (Trust lands) Orders, 1947, to 1964 the
following order is hereby made:
1. This Order may be cited as the Zambia State
Lands, Reserves and Trust Land (Delegation
of Functions) Order, 1989.
14
Section 5 of the Statutory Functions Act, Chapter 4 of the Laws of Zambia.
2. The public officer for the time being holding

the office or executing the duties of
Commissioner of Lands is hereby authorized
to exercise the functions of the President
contained in the Zambia (State Lands and
Reserves) Orders, 1964, the Zambia (Trust
Land) Orders, 1964 and the Zambia (Gwembe
District) Orders, 1964, subject to the specific
or general directions of the Minister charged
with responsibilities for land matters.
the office or executing the duties of Provincial
Lands Officer is hereby authorized to exercise
the functions of granting and disposing of State
Land, Reserves, Trust Land, or any other
immovable property vested in the President,
under Articles 5 and 6A of the Zambia (State
Land and Reserves) Orders, 1964 and Article
5 of the Zambia (Trust Land) Orders, 1964,
subject to the directions, supervision and control
of the Commissioner of Lands.
the office or executing the duties of District
Lands Officer is hereby authorized to exercise
the functions of granting and disposing of
Stateland, Reserves, Trustland or any other
immovable property vested in the President,
under Article 5 and 6A of the Zambia (State
Lands and Reserves) Orders, 1964 and Article
5 of the Zambia (Trustland) Orders, 1964
subject to the directions, supervision and control
of the Provincial Lands Officer.
Apart from Statutory Instrument No. 4 of 1989, the powers of

the Commissioner of Lands are further augmented under circular
No. 1 of 1985 which provides for procedures on land alienation
in Zambia.
21.2.2 Lands and Deeds Registry Department: Registration of

land and interests in land
Dale and McLaughlin have observed that land registration

systems provide the means for recognising formalised property
rights and for regulating the character and transfer of these
rights.15 The said authors have further observed that registries
document certain interests in the land, including information about
the nature and extent of the interests and the names of the
individuals to whom the interests relate. In addition, land registries
provide documentary evidence that is vital for resolving property
disputes as well as information for a wide variety of public
functions.16 The process of land alienation is completed with
registration of the right or interest granted. Land registration
generally refers to the system of recording in the lands register
of a right or interest in land through a deed or a certificate of
title.
The Lands and Deeds Registry at Lusaka is established
pursuant to section 3 of the Lands and Deeds Registry Act.17
The said section also empowers the Minister, from time to time,
to direct by Gazette notice, that there shall be a district Registry
of Deeds in such place as shall be in such notice mentioned for
any district to be thereby defined. There is currently a District
Registry at Ndola on the Copperbelt Province. The same is not
yet fully operational.
Section 4 of the Lands and Deeds Registry Act requires that
certain documents must be registered.
(1) Every document purporting to grant, convey

or transfer land or any interest in land, or to
be a lease or agreement for lease or permit of
occupation of land for a longer term than one
year, or to create any charge upon land,
whether by way of mortgage or otherwise, or
which evidences the satisfaction of any
mortgage or charge, and all bills of sale of
personal property whereof the grantor remains
in apparent possession, unless already
registered pursuant to the provisions of ‘The
North-Eastern Rhodesia Lands and Deeds
Registration Regulations, 1905’ or ‘The North-
Western Rhodesia Lands and Deeds Registry
Proclamation, 1910’, must be registered within
the times hereinafter specified in the Registry
or in a District Registry if eligible for
registration in such District Registry:
15
16
Ibid.
17
Chapter 185 of the Laws of Zambia. The Lands and Deeds Registry Act is covered under chapter 17 of this
Book.
While there are many types of deed registration, they are all
based on three core principles, viz: security, evidence and notice
and priority.18 In terms of security, registration of a document in
a public office provides some measure of security against loss,
destruction, or fraud. 19 In terms of evidence, registered
documents can be used as evidence in support of a claim to a
property interest (although they cannot provide an assurance of
title).20 In terms of notice and priority, registration of a document
gives public notice that a property transaction has occurred and,
with exceptions, the time of registration provides a priority
claim.21 Subsection 1 and 2 of section 7 of the Lands and Deeds
Registry Act provides:
(1) All documents required to be registered as

aforesaid shall have priority according to date
of registration; notice of a prior unregistered
document required to be registered as
aforesaid shall be disregarded in the absence
of actual fraud.
(2) The date of registration shall be the date upon
which the document shall first be lodged for
registration in the Registry or, where
registration is permitted in a District Registry,
in such District Registry.
The issuance of certificate of title to land has not been

decentralised to local authorities as is the case with the planning
and selection of land applicants. The centralisation of title
registration has led to inefficiency and delays in the acquisition
of title to land and has rendered the whole process costly as
people have to travel from far flung areas to either Lusaka or
Ndola where the Deeds Registry are situate.
21.2.1.3 The Survey Department: Surveying and Provision of

Diagrams, Maps and Plans
The subject matter of a system of registration of title to land is

identifiable units or parcels of land. It is in respect of individual
parcels of land that the register shows what interests therein
have been created and who owns such interests or has rights
over the land.22 The register must indicate the parcel of land to
18
19
Ibid.
20
Ibid.
21
Ibid.
22
which it refers and a cadastral plan is essential for this purpose
so as to define the parcel of land in such a manner as to enable
it, when so required to be unambiguously located on the ground.
In most modern systems of land registration, the link between
an entry on the register of the information relating to ownership
and the actual parcel of land to which it relates, is the maps or
plans kept as part of the system.23
Cadastral surveying is the term generally used to describe
the gathering and recording of data about land parcels.24
Cadastral surveys are concerned with geometrical data,
especially the size, shape and location of each land parcel.25 In
Zambia, the Land Survey Ordinance, which after independence
became an Act, was enacted in 1960 to provide the administrative
machinery for carrying out cadastral surveys. The Land Survey
Act is a technical enactment aimed at providing guidelines within
which activities relating to land survey are to be carried out.
The preamble to the Land Survey Act26 provides that it is:
An Act to make further and more comprehensive

provisions for the registration and licensing of land
surveyors; to provide for the manner in which land
surveys shall be carried out and diagrams and plans
connected therewith shall be prepared; to provide
for the protection of survey beacons and other
survey marks; to provide for the establishment and
powers of a Survey Control Board which will be
responsible for the registration and licensing of land
surveyors and for the exercise of disciplinary
control over such surveyors; and to provide for
matters incidental to and connected with the
foregoing.
Section 3 of the Land Survey Act provides the scope or extent

of application of the Act. The section provides that the Act
shall only apply to any survey used for the purpose of effecting
the registration of any parcel of land, or for re-determining the
position of a curvilinear boundary or any beacon defining the
boundary of any registered parcel of land.
The survey department is headed by the Surveyor-General
who is a public officer and land surveyor.27 Section 4 (2)(a); (f)
of the Land Survey Act provides for the functions of the Surveyor
General. The section provides that:
23
Ibid.
24
25
Ibid.
26
27
(2) Subject to the general or special directions of

the Minister, the Surveyor-General shall-
(a) supervise and control the survey and
charting of land for the purposes of
registration;
(b) take charge of and preserve all records
appertaining to the survey of parcels of land
which have been approved;
(c) direct and supervise the conduct of such
trigonometrical, topographical and level
surveys, and such geodetic and
geophysical operations, as the Minister may
direct;
(d) take charge of and preserve the records
of all surveys and operations carried out
under paragraph (c);
(e) supervise the preparation of such maps
as the Minister may direct from the data
derived from any surveys, and the
amendment of such maps; and
(f) generally administer the provisions of this
Act.
Section 5 of the Act provides for the powers of Government

Surveyors. The section provides that:
Any Government surveyor may-

(a) examine and check survey records which
have been lodged with the Surveyor-General
for approval, and reject the whole or any part
of any such records when his examination
reveals inconsistencies in data outside such
limits as may be prescribed or doubt as to the
standards of accuracy, or the soundness of
methods, employed in the survey concerned;
(b) examine all plans and diagrams of surveys of
parcels of land before any registration of such
parcels is effected, and approve such plans
and diagrams if he is satisfied that such surveys
have been carried out in such a manner as
should ensure accurate results, and that such
plans and diagrams have been prepared, and
the boundaries of the land surveyed have been
defined, in the prescribed manner:
Provided that no such approval shall be given
in contravention of any other written law
(c) on the diagram of any parcel of land attached
to a registered document-
(i) define the geometrical figure representing
any surveyed portion of such parcel, the
transfer of ownership of which has been
lodged with the Registrar for registration;
(ii) define the geometrical figure representing
any surveyed portion of such parcel of
land which has been declared a private
township in accordance with the
provisions of the Town Planning Act,
Chapter 123 of the 1959 Edition of the
Laws; and inscribe a certificate at some
suitable place on the face or on the
reverse of such diagram reciting the
numerical extents of the portion which is
to be so transferred and of the remaining
portion of the original parcel of land;
(d) cancel or appropriately amend any general
plan or diagram found to be incorrect;
(e) prepare, certify and issue, at the request of
any person and on payment of the prescribed
fees, copies of approved diagrams filed in the
office of the Surveyor-General which are
available to the public, and copies of diagrams
attached to registered documents;
(f) endorse, amend and, if necessary, correct any
registered diagram or plan, and sign such
endorsement, amendment or correction.
Under the law relating to registration of deeds, i.e., the Lands

and Deeds Registry Act, land is required to be described by
reference to a diagram as defined under the Land Survey Act.
Section 12 of the Lands and Deeds Registry Act provides that:
(1) In this section-

‘diagram’ means a diagram of a piece of land,
as defined by the Land Survey Act, which has
been approved by the Surveyor-General;
‘plan’ means a plan of a piece of land which
has been approved by the Surveyor-General
as sufficiently detailed, where the Surveyor-
General is satisfied that an actual survey or

the approval of a diagram is, for the time being,
impractical;
‘description’ means a sketch plan of the land,
showing with reasonable accuracy the position
of the boundaries of the land in relation to the
position of adjoining land, approved by the
Surveyor-General for the purposes of this
definition, but not as a plan.
(2) Subject to this section, any document relating
to land which is lodged for registration shall
describe the land by reference to a diagram,
plan or description of the land, quoting the year
and Surveyor-General’s number of the plan,
diagram or description.
(3) The diagram, plan or description shall be
annexed to the document unless it, or a
document with it annexed, has already been
registered in relation to the land and the
document lodged refers to the document
already registered.
(4) Where a diagram of a piece of land is
registered, the Registrar may, on the
application of any person interested, endorse
all references in the register to a plan or
description of the land with a reference to
the diagram.
(5) Where a plan of a piece of land is registered,
and no diagram of that piece has been
registered, the Registrar may, on the
application of any person interested, endorse
all references in the register to a description
of the land with a reference to the plan.
(6) Where a description of a piece of land has
been registered, and no plan or diagram has
been registered, the Registrar may, on the
application of any person interested, and after
considering objections from any other person
interested, revise, modify or amend the
description.
(7) Subsection (2) shall not apply to-
(a) a contract for the sale or exchange of
land or any interest in land;
(b) a lease or agreement for a lease relating
to a portion only of a building and creating
a term not exceeding seven years.
From the above provisions, it is clear that the Lands and Deeds
Registry department depends on diagrams prepared by the
Survey Department before preparing title deeds. Before any
title is issued, an applicant must submit a survey diagram which
complies with the requirements of the Land Survey Act. Due to
the shortage of qualified survey staff, the Department of Survey
is in some cases unable to provide surveys to the standard
required or prescribed under the Survey Act. As a way of
overcoming this problem, the Ministry of Lands has resorted to
the issuance of 14 year leases, for which it requires only a sketch
plan instead of a Survey Act survey.28
21.3 Local Authorities
The Lands Department is centralised in Lusaka where its principal

office is found. There are however, Lands Department offices
established in all the nine provinces, although there are no
departments at district level. In the early 1980s, Government
introduced the policy of decentralisation in the Local Government
system and it was felt that Local Authorities should participate
in the process of land alienation at district level, since the Ministry
of Lands has no structure at that level. The Minister of Lands
then issued Circular No.1 of 1985 which, directed all Local
Authorities to be responsible for and on behalf of the
Commissioner of Lands, for processing of applications, selecting
of suitable land applicants and making recommendations to the
Commissioner of Lands for approval. Paragraph 3 of the circular
provides:
Pursuant to the policy of decentralisation and the

principle of participatory democracy it was decided
that District Councils should participate in the
administration of land. To this effect, all District
Councils will be responsible for and on behalf of
the Commissioner of Lands, in the processing of
28
The practice of issuing 14 year leases, for which only sketch plan is required appears to have its legal basis
under section 12 (1) of the Act. The section defines plan to mean: a plan of a piece of land which has been
approved by the Surveyor-General as sufficiently detailed, where the Surveyor-General is satisfied that an
actual survey or the approval of a diagram is, for the time being, impractical;
applications, selecting suitable candidates and

making recommendations as may be decided upon
by them. Such recommendations will be invariably
accepted unless is cases where it becomes apparent
that doing so would cause injustice to others or if a
recommendation so made is contrary to national
interest or public policy.
By establishment, Local Authorities fall under the Ministry of

Local Government and Housing and not the Ministry of Lands.
21.3.1 Land identification and Preparation of Layout Plans
The identification of land for any development in a district is the

responsibility of the Local Authority concerned. Under the
circular, the planning of stands for various uses is the
responsibility of the appropriate planning authority of the area
concerned.29 This is in the line with the Town and Country
Planning Act. City Councils and Municipal Councils are planning
authorities under the Town and Country Planning Act. Once an
area has been planned the planning authority is required to
‘forward the approved layout plans to the Commissioner of
lands for scrutiny as to the availability of the land.’ The
Commissioner of Lands is by the Town and Country Planning
not obliged to inquire into the technicalities of planning. This is a
serious lapse in the system of land alienation because in alienating
land the Commissioner of Lands has a responsibility to ensure
that the land being alienated is properly planned and used for
the intended purpose. In practice, planning and actual alienation
of land cannot meaningfully be divorced from each other. The
stands recommended for allocation to the Commissioner of Lands
are assumed to have been fully serviced by the local authority.30
This is usually not done by the local authorities although they
collect service charges and use non-payment of service as a
reason for recommending the withdrawal of the offer. Most
local authorities have no sufficient resources to finance the
creation of stands and provision of services. In order to help
Councils open up new areas for development, the Lands Act
has established the Land Development Fund.31
29
See paragraph 4 (i) of the Circular.
30
Paragraph 4 (b) i of the Circular.
31
Section 16 of the Lands Act, Chapter 184 of the Laws of Zambia.
21.3.2 Selection of Applicants and Allocation of Stands
Local Authorities are required to advertise the stands to

prospective developers in the national press. On receipt of the
applications a local authority is required to select the most suitable
applicants for the stands and ‘make its recommendations in
writing to the Commissioner of lands giving reasons in
support of the recommendations in any case where there
may have been more than one applicant for any particular
stand, or where an applicant is recommended for more than
one stand’.32
The Commissioner of Lands is required on receipt of the
recommendations, to consider the recommendation(s) and make
offer(s). The copies of such offer(s) are required to be sent to
the local authority concerned. Where the local authority is not a
planning authority the Commissioner of Lands is required to
direct the successful applicant in the letter of offer to ‘apply for
and obtain planning permission from the relevant planning
authority before a lease can be granted’.
In a case where the local authority is aggrieved by the decision
of the Commissioner of Lands, the matter is required to be
referred to the Minister within thirty days from the date of the
decision. The Minister’s decision shall be final.33 Local
authorities are proscribed from permitting, or authorising any
intending developer ‘to enter upon or occupy any stand unless
and until such developer shall have first received the letter
of offer, paid lease fees and the development charges and
has obtained planning permission from the relevant planning
authority. ’34
Before the preparation of the direct lease the local authority
concerned is required to notify the Commissioner of Lands of
the minimum building clause to be inserted in the lease.35 The
criteria for selecting applicants for land is not defined or provided
for in both the Lands Act and the Circular No. 1 of 1985. The
Lands Act however provides that, the President may alienate
land vested in him to any Zambian.36 An attempt to create a
selection procedure is contained in circular No.1 of 1985
whereupon City, Municipal and District Councils, are required
to advertise the planned stands to the members of the public.
32
Paragraph 4 (b) iii of the Circular.
33
Paragraph 4 (b) v of the Circular.
34
Paragraph 4 (b) vii of the Circular.
35
Paragraph 4 (b) viii of the Circular.
36
Section 3 (2) of the Lands Act, Chapter 184 of the Laws of Zambia.
What is uncertain in the procedure for land alienation is that,

first, the Circular states that the Council ‘may advertise’ the
stands. The Circular does not state what other means of inviting
people could be employed since advertising is not mandatory.
Secondly, the Circular states that the Council would select the
‘most suitable applicants.’ The conditions or factors to be taken
into account in arriving at the ‘most suitable applicants’ are not
stipulated or outlined in the Circular or any Statute or regulation.
In terms of practice suitability is determined by proof of capability
to develop the land.
In Cetina Transport Limited v. Commissioner of Lands,37
in an appeal to the Supreme Court against a Lands Tribunal
decision that the respondent do advertise the piece of land in
issue for interested parties to apply and be considered on the
merits, the Supreme Court commented and observed thus in
relation to Circular No. 1 of 1985:
We entirely agree with the Tribunal that the most

important issue for consideration was whether or
not the Council made any recommendations to the
Commissioner of Lands in terms of paragraph 4B
(ii) (iii) and (iv) of Land Circular No. 1 of 1985 at
page 224 of the record of appeal. It provides:
4. Accordingly, the following

procedures have been laid down and it
will be appreciated if you shall ensure
that the provisions of this circular are
strictly adhered to.
B. ALLOCATION OF STANDS
(ii) Before stands are recommended, the
District Council concerned may
advertise them in the national press
inviting prospective developers to make
applications to the District Council in
the form appended hereto and
numbered as Annexure A.
(iii) On receipt of the application the District
Council concerned shall proceed to
select the most suitable applicants for the
stands and make its recommendations
37
SCZ Appeal No. 79 of 1999 [unreported].
in writing to the Commissioner of Lands
giving reasons is support of the
recommendations in any case where
there may have been more than one
applicant for any particular stand, or
where an applicant is recommended for
more than one stand.
(iv) On receipt of the recommendation(s)
from the District Council(s), the
Commissioner of Lands shall consider
such recommendation(s) and may
make offer(s) to the Successful
applicant(s), sending copies of such
offer(s) to the District Council(s)
concerned.
It is common cause that the Council did not

recommend the Appellant to the Commissioner of
Lands for allocation of the piece of land in issue.
Without a recommendation by the Council we do
not see how the Commissioner of Lands could have
allocated the land to the appellant even if he
received the copy letter and treated it as an
application. Mr Sikota also urged us to order the
respondent to consider the appellant’s application,
being the only applicant. That we cannot do
because the application before the Tribunal was
not for a writ of mandamus and even if it had been
we would not make such order in the absence of
the Council’s recommendation. The appeal would
therefore fail on this ground and in view of what
we have said here we do not propose to consider
the other grounds of appeal. We have no doubt
that the Tribunal’s order that the respondent do
advertise the piece of land in issue and consider
any applications on the merits was most equitable
in the circumstances of this case and we affirm it.
In the event therefore the appeal is dismissed with
costs to the respondent to be agreed upon failing
which to be taxed.
The effect of failure to make land available on time has made

people resort to extra legal means where they start building
without offers or Certificates of title. The situation on the ground

is that most Planning Authorities have no capacity in terms of
resources and qualified staff to effectively deal with issues of
planning. Local Authorities do not have the ability to provide
services in their planned areas.
In terms of supervision, Local Authorities are neither
responsible to the Minister of Lands nor the Commissioner of
Lands because they fall under a different Ministry. In the event
of a District Council failing to discharge its land alienation
functions properly, there are no direct sanctions from the Ministry
of Lands, because the Ministry of Local Government and
Housing supervises Local Authorities. The only possible sanction
would be to terminate the agency relationship existing between
the Ministry of Lands and a particular District Council found to
be at fault.38 The absence of the Ministry of Lands at district
level has created a vacuum in the land alienation process and
has instead created duplicity of functions between Ministries.
21.3.3 Customary land
Local authorities also play some role in the alienation and

conversion of customary land to leasehold. When the District
Council receives a recommendation from the traditional chief,
the Council is required to consider whether or not there is a
conflict between customary law of that area and the Lands
Act. If the Council is satisfied that there is no conflict between
the customary law of that area and the Lands Act, the District
Council is required to make a recommendation to the
Commissioner of Lands.39
There may be instances when a Council considers that it will
be in the interests of the community to convert a particular parcel
of land, held under customary tenure into a leasehold tenure. If
such a situation arises, the Council shall, in consultation with the
chief in whose area the land to be converted is situated, apply to
the Commissioner of Lands for conversion. Before making the
application for conversion, the Council is required to ascertain
38
The agency of the Lusaka City Council for instance was terminated in October 2005 when it began advertising
and allocating the ‘Baobab’ land to interested candidates before such land had been planned and serviced,
which was in flagrant disregard of the provisions of the law relating to land alienation. The agency of Solwezi
Municipal Council was also terminated in May 2006 on the ground of failure to comply with the laid down
procedures on land alienation under the circular. The termination of the agency relationship can create a
practical problem in that the Ministry of Lands would revoke the agency only in as far as the land alienation
is concerned but cannot interfere in planning. If the local authority was to refuse to plan the land the Ministry
of Land may find itself in a situation where it cannot alienate land because it is unplanned.
39
Statutory Instrument No. 89 of 1996: The Lands (Customary Tenure) (Conversion) Regulations; see regulation
3 (1) (2).
any family or communal interests or rights relating to the parcel
of land to be converted and specify any interest or rights subject
to which a grant of leasehold will be made.40
Circular No. 1 of 1985 also covers the procedures for
alienation of land in Reserves and Trust lands. Under the 1995
Lands Act Reserves and Trust lands have been merged and are
now known as customary area.41 The circular has therefore to
be read with necessary modifications and adaptations in view
of the provisions of the lands Act 1995. The procedures under
the circular, for alienation of land in reserves and trust land (now
known as customary area) is provided for as follows:
(i) In the Reserves and Trustlands, the powers of

the President, in making grants or dispositions of
land, are limited by the requirement to consult
the local authority affected by such grants or
dispositions of land.
(ii) Local authority, in the Orders, has been
administratively understood to mean the Chief and
the District Council. This means, therefore, that
the consents of the Chiefs and District Council
shall continue to be the basis for any approval of
applicants for land in the Reserves and Trust
Lands.
(iii) As has been the practice before, to ensure that a
local authority has been consulted, the
Commissioner of Lands will insist that each
recommendation is accompanied by the following:
(a) written consent of the chief under his hand;
(b) extracts of the minutes of the Committee of
the Council responsible for land matters
embodying the relevant resolution and
showing who attended, duly authenticated by
the Chairman of the Council and the District
Executive Secretary;
(c) extracts of the minutes of the full Council
with the relevant resolution and showing who
attended, duly authenticated by the Chairman
of the Council and the District Executive
Secretary;
40
Ibid., regulation 4.
41
See definition of Customary Area under section 2 of Chapter 289 of the Laws of Zambia.
(d) four copies of the approved layout plan

showing the site applied for, duly endorsed
and stamped by the Chief, Chairman of the
Council and the District Executive Secretary.
(iv) The preparation of the layout plan showing the
area applied for, should be done by persons
possessed with the catographic know-how.
(v) It has been decided for the time being, not to
allocate more than 250 hectares of land for
farming purposes in the Reserves and Trust lands
areas. The District Councils are therefore,
advised not to recommend alienation of land on
title in such areas in excess of 250 (two hundred
and fifty) hectares as such recommendations
would be difficult to consider.
(vi) In each case recommended to the Commissioner
of Lands, the recommending authority shall certify
that it has physically inspected the land, applied
for and confirm that settlements and other
persons interests and rights have not been
affected by the approval of the application.42
The Circular also deals with procedures for application for land
by non-Zambians. The circular provides that:
To obtain the approval of His Excellency the

President, a non-Zambian wishing to own a piece of
land will be required, in the first place, to submit his
application to the District Council concerned for
scrutiny. In considering the application, the District
Council will be at liberty to solicit for as much
information as possible from the applicant about the
intended development.
(i) When recommending the application to the
Commissioner of Lands, the District Council shall
be required to give full back-up information in
support of or against the applicant in addition to
the following:
(a) extracts of the minutes of the Committee of
the Council responsible for land matters,
embodying the relevant resolution and
showing who attended the meeting duly
authenticated by the Chairman of the Council
and the District Executive Secretary;
42
See pp. 2 and 3 of the Circular.
(b) extracts of the minutes of the full Council,
with the relevant resolution and showing who
attended the meeting duly authenticated by
Executive Secretary; and
(c) four copies of the approval layout plan, showing
the site applied for, duly stamped and endorsed by
Executive Secretary where the site has not been
numbered.43
Circular No. LA/11202, dated 15 April 1992, issued by the Lands

Department and signed by the Commissioner of Lands,
introduced amendments to the Land Circular No. 1 of 1985.
Paragraph (b) of the circular provides that: ‘Once the offer
has been made, title deeds issued, the lessee shall within six
months commence development on the stand and upon
completion, would be required to provide evidence of
occupation not later than 18 months following the date of
offer...’
This requirement which is usually included in the Presidential
lease is there to ensure that the allocatee does utilise the land
efficiently. Failure to develop the land to the level required under
the development clause in the state lease is usually a fertile
ground for re entry.
It has been observed in practice that most local authorities
are not conversant with the procedures on land alienation. To a
greater extent, Local Authorities are not even competent to
ascertain the size of the area being granted on the ground. A
practical example occurred in Nyimba District of Eastern
Province where Nyimba District Council, upon receipt of an
application for land in extent of 27,000 hectares in Chief
Nyalugwe’s area advised the chief to proceed with the grant
and yet on the ground there were people and villages settled on
the same land to be alienated. When this recommendation reached
the Commissioner of Lands, the Commissioner of Lands and
the Minister of Lands decided to visit the area before approving
the recommendation. It was discovered on the ground that if
such a recommendation had been approved it would have
affected a lot of villagers and the chiefdom itself.44
43
See page 3 of the Circular.
44
Visit of Chief Nyalugwe’s area in Nyimba District on 19 December 2005 by the Commissioner of Lands and
the Minister of Lands during a provincial tour of Eastern Province.
21.3.4 The Housing (Statutory and Improvement) Areas
The Housing (Statutory and Improvement) Areas Act 45 is

covered under chapter nineteen of this book. The Housing and
Improvement Areas are another category of land which is
administered by Local Authorities. The Local Authorities
concerned issue Council Certificates of Title to the tenants in
Statutory Housing Areas. In Improvement Areas occupants are
issued with occupancy licences. The demand for land and housing
has continued to increase and members of the public have now
resorted to occupying any vacant land they find, even land held
on leasehold title by private individuals.
The problem in the system of land alienation and the
proliferation of unplanned settlements could to some extent be
attributed largely to institutional failure to plan and alienate land
efficiently.
21.4 The Agricultural Lands Board
The Agricultural Lands Board was first established in 1956, under

the Agriculture Lands Ordinance.46 The 1956 Ordinance was
repealed by the 1960 Agricultural Lands Ordinance which after
independence became an Act. The Ordinance of 1956 was
found wanting as it did not vest sufficient decision making power
in the Agricultural Lands Board.47 The Agricultural Lands
Ordinance sought to achieve two objectives, viz: to afford tenants
of agricultural land an opportunity to convert their leaseholds
into freeholds and secondly, to ensure that agricultural land was
adequately developed by making the grant of a freehold interest
dependent on the fulfilment of specified minimum development
goals.48 As pointed out under section 22.1.2 above, the Governor
of Northern Rhodesia (and later the President of the Republic),
was empowered to alienate land in Crown land (State land after
independence) but with regards with agricultural land, the
conditions and terms upon which grants could be made were
prescribed by the Agricultural Lands Ordinance. The
Agricultural Lands Ordinance prevented the Governor (and later
the President) from making grants on such terms as he might
think fit. The Agricultural Lands Ordinance was the only piece
45
Chapter 194 of the Laws of Zambia
46
No. 51 of 1956. The Ordinance came into operation on 14th March 1957. See general notice No.66 of 1957
47
Mulimbwa, A.C., ‘Land Control, Agricultural Development, and the Agricultural Lands Act, Cap 292, of the
Laws of Zambia’, in Zambia Law Journal, Volume 19 (1987), p. 39
48
Ibid.
of legislation which prescribed the terms and conditions upon
which grants of land could be made. This position is largely still
obtaining today. Apart from Statutory Instrument No. 7 of 1964,
which was later revoked by Statutory Instrument No. 4 of 1989,
there is no statute defining the authority, jurisdiction and powers
of the Commissioner of Lands, as well as prescribing the terms
and conditions upon which grants of land can be made.49
The preamble to the Agricultural Lands Act,50 provides that
it is:
An Act to provide for the establishment of the

Agricultural Lands Board; to prescribe the
composition and membership thereof; to prescribe
its powers and functions; to provide for tenant
farming schemes; and to provide for matters
incidental to or connected with the foregoing.
The Act provides for the establishment of an Agricultural Board

appointed by the Minister of Lands and prescribes its composition,
membership, powers and functions. It also provides for alienation
of agricultural land, preparation of schemes, application
processes for allotted land, criteria for reviewing applications,
duration of leases, rents and conditions of use.
Section 4 of the Act establishes the Agricultural Lands Board
and also spells out its composition. The Agricultural Lands Act
only applies to specific portions of land declared to fall under
the Act and contained in the Schedule to the Act, hence the
reference to such land as ‘scheduled land.’ Section 8 of the
Act provides for the function of the Agricultural Lands Board.
(1) The functions of the Board, in addition to the powers

and duties specifically assigned to it under this Act,
shall be-
(a) to keep under review the use that is being made
by the President of State Land outside urban
and peri-urban areas and to make such
recommendations to the Minister thereon as it
may deem fit;
49
The Lands Act to some extent has provisions prescribing the terms and conditions upon which grants and
dispositions of land can be made. Section 4 provides for conditions on alienation of land. The section
provides that the President shall not alienate land either to a Zambian or non-Zambian without receiving
consideration in money for such alienation except where such alienation is for public purpose.
50
Chapter 187 of the Laws of Zambia
(b) to carry out such other duties in relation to the

alienation of State Land outside urban and peri-
urban areas as the Minister may place upon
the Board;
(c) to keep under review the general operation of
this Act and to make such recommendations to
the Minister thereon as it may deem fit.
(2) In the exercise of its functions under this Act, the
Board shall comply with any general or special
directions of policy given by the Minister.
(3) In the exercise of its advisory duties, the Board shall
through its chairman communicate its advice and
recommendations to the Minister.
(4) In the exercise of any powers of decision conferred
upon the Board by this Act or by the Minister, the
Board shall communicate its decision to the Permanent
Secretary, who shall cause such decisions to be
carried out subject to the provisions of this Act and
of any other written law.
(5) No member of the Board shall communicate any
advice,recommendation or any decision whatsoever
of the Board to any person who is not a member of
the Board except when authorised so to do by the
Minister, or the Permanent Secretary.
Under section 10 of the Act, the Minister may, by statutory

notice, declare any state land and, with the consent of the
registered owner thereof, any freehold land to be subject to the
provisions of the Act.51 This is what becomes scheduled land
upon which the Act applies. Following such declaration the
Board is empowered to prepare allotment plans showing the
boundaries of each unit for allocation to individual applicants.
The Agricultural Lands Act has provisions on the control of
the scheduled land to ensure that agricultural land is adequately
developed by making the grant dependent on the fulfilment of
specified minimum development goals. This control of land under
the Act was to be achieved through, first, the prescription of
criteria for allocation of land;52 second, the requirement of
beneficial occupation;53 third, restraint on freedom of alienation
51
By virtue of the repealed Land (Conversion of Titles) Act of 1975, land held under freehold estate or tenure
was converted to a statutory leasehold of 100 years commencing 1 July 1975. The Land (Conversion of Titles)
Act is covered under chapter 12 of this book.
52
See section 17 (2) of the Act.
53
See section 21 (1) of the Act.
by land holders54 and fourth, prohibition against abandonment.55
The above factors were deemed necessary for the promotion
of agricultural production.56
Dr Mulimbwa has observed that the exercise of control for
scheduled land was fraught with various difficulties owing mainly
to the fact that the Act was a colonial legacy based on a different
mode of agriculture. The Act seeks to base agriculture on those
who have financial resources and a decided element of
experience of commercial farming and that with the coming of
independence and a change in emphasis from production by a
small elite of white commercial farmers to the masses, the Act
is inappropriate.57
The Agricultural Lands Board is defunct and has not been
convened in years. Land allocations are proceeding without it.
The Land Circular No. 1 of 1985 makes provision for the
alienation of agricultural land through the Local Authorities after
the Department of Field Services under the Ministry of
Agriculture has done the planning.
21.5 Land Use Planning Section: Ministry of Agriculture
The land use planning section in the Ministry of Agriculture and

Co-operatives is involved through its central, provincial and
district offices with the preparation of farm plans and farm
layouts, settlement planning, land allocation and demarcations,
site preparations, land use and land suitability assessments.
21.6 The Ministry of Environment and the Environmental

Council of Zambia
The Ministry of Environment is responsible for the Control of

land use for forestry under the Forestry Act.58 The objectives
of the Forestry Act, as set out in the preamble, are to:
Provide for the establishment and management of

National Forests and Local Forests; to make
provision for the conservation and protection of
54
See section 24 (1) of the Act. A lessee is not allowed to assign, sublet, mortgage, charge or create any interest
in land or enter into any partnership without the prior presidential consent. Any contravention of this
provision is deemed to be a failure to comply with the requirement of the Act and can lead to re-entry under
the provisions of section 31 (2) of the Act.
55
See section 36 of the Act.
56
57
Ibid., at p. 56.
58
forests and trees; to provide for the licensing and

sale of forest produce; and to provide for matters
connected with or incidental to the foregoing.
The Commissioner of Lands has generally no powers to grant

or alienate land in a national or local forest. In Chimambo and
Others v. the Commissioner of Lands and Others,59 the High
Court quashed the Commissioner of Lands’ decision to allocate
land in a gazetted local forest, as he (Commissioner of Lands)
had no legal authority so to do under section 23 as read together
with section 24 and the proviso thereto of the Forest Act.60 The
proviso to section 24 states that ‘provided that the President
may, by Statutory Instrument, permit in a local forest the doing
of any of the acts prohibited under section 16. In this case the
President did not issue any Statutory Instrument permitting the
building of a Golf course and Hotel which would obviously involve
the destruction of forest by felling of trees which exercise is
prohibited under section 16 of the Forest Act.
Under section 3 of the Town and Country Planning Act,61
the Environmental Council of Zambia, established under section
3 of the Environmental Protection and Pollution Control Act,62
is for purposes of Part V and VI of the Town and Country
Planning Act, a Planning authority. Part V of the Town and
Country Planning Act requires permission before any
development and subdivision of land can take place.63 This
means that in certain areas 64 before any development or
subdivision (as defined under section 22 of the Act) can be
effected, there is a requirement for the consent or permission of
the Environment Council. The Environmental Council will
generally grant consent for subdivision or development based
on environmental considerations and appraisals.
21.7 Department of Physical Planning and Housing: Ministry

of Local Government and Housing
Under section 5 of the Town and Country Planning Act, the

Minister of Local Government has designated the Director of
59
2005/HP/0564 [unreported].
60
61
Chapter 283 of the Laws of Zambia. The Town and Country Planning Act is dealt with under chapter 18 of this
book
62
Cap 204 of the Laws of Zambia.
63
Part V of the Town and Country Planning Act is covered under section 18.7 of chapter 18 of this book.
64
In areas where there is an Order to prepare a structure plan or local plan, in areas subject to an approved
structure plan or local plan and in such areas as are within a distance of 20 miles from the boundaries of the
areas mentioned above; see section 22 (1) of the Act, which is excerpted under section 18.7 of chapter 18 of
this book.
Physical Planning and Housing, a Public Officer in Charge of
town and country planning in the Ministry of Local Government
and Housing as a strategic planning authority to exercise functions
that the Minister may delegate under section 24 of the Act
(dealing with delegation of functions relating to grant or refusal
of permission to develop or subdivide land) or exercise such
functions as may be prescribed by the Minister.
21.8 Department of Resettlement: Office of the Vice-President
The Office of the Vice-President is mandated to administer land

under the Department of Resettlement. The driving force in the
making of land available for the creation of resettlement schemes
arose from the Government’s desire to increase agricultural
productivity and reduce poverty. Faced with the problem of rapid
migrations from the rural areas and rising unemployment,
especially in the peri-urban and urban areas, the notion of
resettling people in productive agricultural areas and assisting
them to develop farm plots demarcated and assigned to them
was viewed as the most realistic remedy to unemployment.
The Department was established in 1989, under the office
of the Prime Minister in 1989 to facilitate the government’s
programme of settling the unemployed and the retired that
resided in towns at the time. The department was given statutory
powers on resettlement under the Statutory Functions Act65
and a Gazette Notice was to that effect issued. 66 The
Department was assigned a number of responsibilities which
included the following:
(i) devise a suitable land settlement policy and procedural
guidelines;
(ii) identify, appraise, and select suitable sites in conjunction
with district authorities;
(iii) initiate the survey and planning of the sites;
(iv) coordinate all resettlement activities;
(v) mobilise resources; and
(vi) supervise implementation and monitor projects in the
settlement areas.
Land under resettlement schemes is another area that provides
a serious lapse in terms of administration. There are problems
in resettlement schemes due to lack of clear guidelines as to
65
66
Gazette Notice No. 42 of 1992.
who should benefit from these schemes. When these schemes

were created, the main beneficiaries were supposed to be the
retired persons, retrenched persons and disadvantaged groups.
However, over the years the objective of these schemes has
been lost and the end result has been that any Zambian can
acquire land in these areas which was not supposed to be the
case. Furthermore, the Office of the Vice-President where the
Resettlement Department is placed is ill-equipped to handle the
issues of land alienation. The department normally recommends
for title to the Commissioner of Lands. The Ministry with the
mandate to alienate land is the Ministry of Lands and giving the
alienation of land under resettlement schemes to the Office of
the Vice-President is a serious misplacement of ministerial
functions.
The other concerns that have been raised are that in certain
circumstances Government opened up resettlement schemes
without provision of essential services such as schools, health
centres, roads, water and so on. Since there is now a provision
for people to get title deeds in the resettlement schemes, the
procedure to follow is rather cumbersome. Since the rules and
procedures of acquiring title are same as those procedures under
any other category of land, the relevance of having land under
resettlement schemes is difficult to appreciate. If resettlements
have to continue, there is need to clearly spellout the target
groups which it intends to benefit.
21.9 Zambia Wildlife Authority
The Zambia Wild Life Authority is constituted under the Zambia

Widlife Act of 1998.67 Under section 26 (1) of the Zambia
Wildlife Authority Act, the President may, after consultation with
the Authority and the local community, by Statutory Order, declare
any area of land within the Republic to be a Game Management
Area for sustainable utilisation of wildlife. The involvement of
Zambia Wildlife Authority in the management of land under Game
Management Areas arises where a person who has been using
or occupying land under Game Management Areas intends to
convert the same to leasehold. To this extent the Lands Act,
provides that:
67
Act No. 12 of 1998.
the conversion of rights from a customary tenure
to a leasehold tenure shall have effect only after
the approval of the chief and the local authorities
in whose area the land to be converted is situated,
and in the case of a Game Management Area, and
the Director of National Parks and Wildlife Service
(now Zambia Wildlife Authority), the land to be
converted shall have been identified by a plan
showing the exact extent of the land to be
converted.68
The role of the Zambia Wildlife Authority has however, not been
free from conflicts with traditional chiefs and other problems
associated with the management of customary land. There are
communities and chiefdoms in these areas that have existed
prior to the establishment of Game Management Areas. The
Involvement of Zambia Wildlife Authority in the conversion of
these areas to leasehold has not been appreciated by traditional
chiefs. A case in point is the land in the Mambwe District of
Eastern Province where most of this land is under Game
Management Areas which also comprises chiefdoms in these
Game Management Areas. The Mambwe District Council has
been making frantic efforts to have the land stretching from the
Mfuwe Airport to the entrance of South Luangwa National Park
converted to leasehold in order to plan it for modern development
and improve tourism.69 Chiefs are reluctant to have this land
converted though the Director-General of Zambia Wildlife
Authority has no objection to have this land converted to leasehold
and planned properly. The Lands Act is however silent in the
event of a conflict between a chief and the Director-General of
Zambia Wildlife Authority in granting or withholding consent to
the conversion of land held in a Game Management Area.
21.10 An Appraisal of the Land Delivery System in Zambia
The Zambian land delivery system and administration has a

number of shortcomings which inevitably lead to delays in the
registration and issuance of title deeds. In its current state, the
land delivery system in Zambia is to a large extent grappling
with the increasing demand for titled land due to a number of
bottlenecks in the system.
68
Section 8 (2) of the Lands Act, Chapter 184 of the Laws of Zambia.
69
This problem was discovered during the Lands Ministerial tour of the Eastern Province in the Mambwe
District on 18 December 2005.
(a) Office of Commissioner of Lands
In relation to the office of the Commissioner of Lands, the

Mungomba Constitution Review Commission70 noted that the
powers of the Commissioner of Lands are derived from Statutory
Instrument number 7 of 1964 (which was revoked by Statutory
Instrument number 4 of 1989.) The Commission observed that
the Statutory Instrument was further augmented by Circular
No. 1 of 1985, which provides rules with regard to procedures
on land alienation. The Commission further noted that there
was no statute in place defining the authority, jurisdiction and
powers of the Commissioner of Lands. The Commission was
of the view that the Commissioner of Lands should not be
responsible for approval and allocation of lands, ‘because it is
too vast a function to be discharged by an individual.’71
The Commission recommended for the establishment of a
Lands Commission whose functions would include, to hold,
alienate and manage any land in Zambia.72 The Commission
further recommended the re-establishment of the office of the
Commissioner of Lands which should carry out the functions of
the office under the supervision of the Lands Commission.
In its reaction to the Constitution Review Commission report,
Government rejected the recommendation to establish a Lands
Commission on grounds of lack of resources.73 In spite of
Governments rejection of the recommendation, the establishment
of a land commission was nonetheless incorporated in the final
draft constitution.74
The Commissioner of Lands has powers to make grants and
dispositions of land to any person, subject to special or general
directions of the Minister responsible for land. There is need,
however, for a statute or law that will define the authority,
jurisdiction and powers of the Commissioner of Lands. In so far
as state land is concerned, there is no legislation apart from the
Agricultural Lands Act, which prescribes on what terms and
conditions grants and dispositions of land can be made.
70
The proposed Constitutional enactments relating to land, in the Mungomba Draft Constitution are covered
under section 13.5 of chapter 13 of this book,.
71
Government of the Republic of Zambia, Interim Report of the Constitution Review Commission, 2005, p. 779
72
Ibid., p. 780.
73
See Governments Reactions To The Constitutional Review Commission(CRC) Draft Constitution, 31 October
2005, Government of The Republic of Zambia.
74
See articles 334-337 of the ‘final’ Draft Constitution.
(b) Problems of Institutional Coordination
The multiplicity of institutions dealing with land matters in Zambia

have been outlined above. These institutions include, the Ministry
of Lands, Ministry of Agriculture and Co-operatives, the
Department of Physical Planning and Housing in the Ministry
of Local Government and Housing, the Resettlement Department
in the Office of the Vice-President, and the Ministry of Tourism,
Environment and Natural Resources and the Environmental
Council of Zambia. The institutions responsible for implementing
the various functions of land policy are varied and there is
inadequate co-ordination among them and their line ministries.75
There are also various pieces of legislation dealing with land
matters. The Commissioner of Lands relies on the survey
department for surveying and mapping. The land use planning
appraisals are executed by the land use planning section of the
Ministry of Agriculture. The Environmental Council makes
decisions on subdivisions and development of land in certain
areas.
There is need to overhaul the different institutions and
departments responsible for land policy and delivery in order to
have an efficient land delivery system. There is also need to
clarify roles and responsibilities amongst the institutions involved
in the land delivery process and policy.76 It has been observed
that to expect ‘the various ministries to make expeditious
decisions in a seemless fashion is simply too much to expect.’77
The reliance by the Ministry of Lands on several other
Government institutions and agencies (which inevitably leads to
difficulties in co-ordination) does result into considerable delay
and confusion.78 Reliance on planning approval and provision
of services from local authorities is one problem facing the
ministry of Lands. The Ministry of Lands also heavily depends
on the Ministry of Agriculture staff on the preparation of sketch
plans for 14-year leases.79 This reliance on the staff of other
Ministries means that the Ministry of Lands lacks control over
the rate of land delivery.80
Problems of co-ordination within the Ministry of Lands have
also been identified. It has been observed that the Lands
75
Roth, M. (ed.), Land Tenure, Land Markets, and Institutional Transformation in Zambia. Madison: Land
Tenure Centre, University of Wisconsin (September 1994), p. 24.
76
Ibid.
77
Ibid.
78
Ibid., p. 59.
79
Ibid.
80
Ibid.
Department and Survey Department do not co-ordinate in order

to provide cost-effective access to land.81 It has been further
observed that the Survey Department has enjoyed a remarkable
degree of autonomy, with the surveyor general at an equivalent
level with the Commissioner of Lands. The Survey Department
‘must be seen as an integral part of the land delivery system,
a service section for the Lands Department which actually
allocates land.’82
The Mungomba Commission similarly noted the lack of co-
ordination among the institutions that deal with land matters in
Zambia.83 The Commission’s recommendations on this aspect
were that:
(a) institutional reforms among institutions dealing in land
should be introduced, while a body to coordinate the
operations of these institutions should be established
(b) there should be a comprehensive review,
harmonisation and updating of the various land related
laws in order to provide a clear regulatory framework
for policy implementation.84
(c) Problems of Human Resources
A further source of problems in the land delivery system is lack

of qualified staff. This problem is particularly pronounced in the
Survey Department of the Ministry of Lands. Due to shortage
of well trained survey staff, the Ministry of Lands is unable to
provide surveys to the standard required or prescribed under
the Survey Act. The inability to provide surveys to the required
standard is a major bottle-neck in the system of land delivery
and titling.85 To overcome this problem, the Ministry of Lands
has in some cases resorted to the issuance of 14-year leases,
for which it requires only a sketch plan instead of a survey
diagram. The land delivery system is severely constrained by
the limited number of surveyors and the volume of applications,
many of which have been pending for many years. Considerable
delays from the time of lodgement of survey records up to the
time of final approval have been experienced.
81
Ibid.
82
Ibid.
83
84
Ibid., at p. 777.
85
(d) Centralisation of Title Registration and Issuance of Consent
The centralisation of title registration has led to inefficiency and

delays in the acquisition of title to land. The Mungomba
Commission equally noted that the problem of accessing and
owning land in Zambia was further compounded by the fact
that the process is highly centralised.86 This makes the process
of acquiring land costly in terms of time, financial and other
resources. There is need for decentralisation of both registry
services and land allocation functions including the grant of
consent at least to all provincial centres in order to reduce costs
and delays in land transactions.
(e) Legal Framework Governing Land Administration
The legal framework governing land administration in Zambia is

located in several statutes. Some of these statutes are not
comprehensive and do not address all the needs in land
administration. 87 There is therefore, an urgent need, as
recommended by the Mungomba Commission, for a
comprehensive review, harmonisation and updating of the various
land-related laws in order to provide a clear regulatory
framework for policy implementation.
(f) Need for Strict Enforcement of Covenants Regarding the

Use of Land
There is urgent need for the lands department under the

Commissioner of Lands’ office to strictly enforce the covenants
regarding the use of land. Security of land tenure should be
dependent upon proper use of land. The development clause in
the lease agreement should be strictly enforced. Failure to use
the land as prescribed in the development clause in the lease
should attract re-entry proceedings and subsequent forfeiture
of the lease. There is also a need for the office of the
Commissioner of Lands to strictly follow the provisions of the
law in relation to re-entries. It is no exaggeration to state that in
the past at least half of the cases before the Lands Tribunal per
session related to challenges to the re-entry processes. Most of
these challenges have been successful on the ground of failure
to follow the mandatory provisions of section 13 of the Lands
86
Supra note 83.
87
Ibid.
Act. In order for the Lands Department to effectively monitor

compliance with covenants and conditions under the lease
agreement, there is need to improve or enhance the capacity of
the Lands Department especially in terms of transport. There is
need to set up a land use section within the Lands Department
with the mandate to constantly monitor land use.
(g) Need to Prevent Sub-divisions of Undeveloped Land for

Speculative Purposes
Many applications for allocation of land have been requested

purely on status and speculative purposes. The Mungomba
Commission observed that as a result of lack of legal restriction
on a number of hectares that an individual can acquire in Zambia,
some of the land allocated (both to Zambians and non-Zambians)
remain undeveloped for a long period of time and that
subsequently the owners resort to selling the undeveloped large
tracts of land which they originally got at a token fee from
Government. The Commission was of the view that this
promoted speculation of land and as such it was abuse of the
land tenure system. The Commission further observed that the
practice of assigning or subdividing undeveloped land led to
speculation on land and has been abused and has created critical
shortage of land in towns and cities. The Commission was of
the view that there was need to regulate the speculation and
subdivision of undeveloped land.88
(h) Need to Open Up More Land for Development
The 1995 Lands Act established the Land Development Fund.89

The fund is required to be applied for opening up of new areas
for the development of land.90 A Local authority that wishes to
develop any area in its locality may apply to the fund for money
to develop the area. The Land Development Fund has not served
much of its purpose so far. Only a few local Authorities have so
far benefited from the fund. 91 It appears that most Local
Authorities were until recently unaware of the guidelines or
regulations relating to the fund.92 Local authorities should take
advantage of this fund by opening up new areas for development.
88
Supra note 74, at p. 773 - 4
89
90
91
These are Kazungula, Kalulushi, Chinsali, Mporokoso, Isoka, Chavuma and Mufulira.
92
See The Lands (Land Development Fund) Regulations S.I No. 88 of 1996.
(i) Access to Customary Land
The Ministry of Lands needs to seriously engage the traditional

authorities in the country so as to convince them to release part
of ‘their land’ to the state. State land comprises about 6 per
cent of the land mass in Zambia and most of this land has already
been alienated. Traditional authorities therefore should release
part of their land to the state for development activities.
22.11 Positive Trends in Land Delivery System and

Administration
On a positive note, the rate at which Presidential consent (though

still centralised and thereby leading to great cost) is been granted
has greatly improved. This can be mainly attributed to the
provisions of the Lands Act of 1995 which requires consent
only in cases of transfer or assignment. Under the repealed
1975 Lands (Conversion of Titles) Act, all transactions in land
required Presidential consent. There were no guidelines for the
grant or refusal to grant consent.93 There was also no time-
frame within which consent could be granted or refused to be
granted. The consent requirements under the repealed 1975 Act,
coupled with understaffing in the Ministry of Lands, led to a lot
of delays in the completion of land transactions. Under the
current provisions of the Lands Act, there is deemed consent
i.e., where a person applies for consent and the same is not
granted within forty-five days of filing the application, the consent
shall be deemed to have been granted.94 There is further a
provision that in case the President refuses to grant consent
within 30 days, he is obliged to give reasons for the refusal.95
Another positive development that has occurred in both the
Lands Department and Lands and Deeds Registry, is that there
are now a number of Legal Practitioners who have been engaged
in these departments. This development has led to efficiency
and professionalism in the discharge of duties by these
departments.
The computerisation of the Ministry of Lands is also another
positive achievement. The timely and accurate delivery of
information to institutions or agencies responsible for land
administration and alienation is an essential ingredient in the
efficient and cost-effective delivery of land.
93
See sections 12.5 and 12.7 of chapter 12 of this book.
94
See section 5 (2) of chapter 184 of the Laws of Zambia..
95
See section 5 (3) of chapter 184 of the Laws of Zambia.
The resolution of conflicts arising or concerning the ownership

and use of land is also an important component of an efficient
land delivery system. The creation of the Lands Tribunal under
the 1995 Lands Act was intended to achieve the dispensation of
justice in an efficient and cost-effective manner. The jurisdiction
of the Lands Tribunal under the 1995 Act is, however, very
limited to the extent that the tribunal has not been very
effective.96 There is urgent need to widen the jurisdiction of the
Lands Tribunal so that it can effectively play its rightful role.
At the operational level, there is need to decentralise the
tribunal. The operations of the tribunal are currently centralised
in Lusaka. There is also need to fund the tribunal for it to
effectively discharge its mandate under the Act.
21.12 The Fifth National Development Plan vis-a-vis The

Land Administration and Delivery System
Government in the Fifth National Development Plan97 has

identified a number of challenges that hinder the ability of the
land sector to adequately empower the people of Zambia, realise
the full potential of the land resource, and contribute to the
reduction of poverty levels. The factors identified were:
(a) Duality of land tenure.
(b) Over centralised land administration system.
(c) Inadequate empowerment of citizens, especially in
customary areas.
(d) Lack of land policy.
(e) Abuse of current system of acquiring land in both
customary and state land.
(f) Ineffective land use planning.
(g) Ignorance of land alienation procedures.
(h) Lack of clear guidelines on how to attach value to land
that is to be allocated.
(i) Ineffective land audit.
(j) Inadequate appreciation of the roles played by traditional
rulers and the president in land allocation; and
(k) Ineffective co-ordination among land administration
institutions.98
96
See Section 13.4 of chapter 13 of this book.
97
Government of the Republic of Zambia, Ministry of Finance and National Planning, FIFTH NATIONAL
DEVELOPMENT PLAN, 2006 – 2010. Lusaka: Government Printer.
98
Ibid., pp. 56-57
Under the Plan, government has committed itself to streamline
the land delivery system to facilitate economic activities. To
this effect the plan provides that:
A new land policy shall be developed during the Plan

period to address the multitude of constraints in the
land sector, which includes review of legislation and
creation of land banks for all potential from within
and outside the country in line with Citizens
Empowerment Act. The Government shall also
review the structure of the Ministry of Lands with a
view of bringing all land dealing institutions under
one roof. The restructuring and strengthening of
the Ministry will aim to make it more effective,
professional and transparent so as to secure fair and
equitable access to, and control of the vital resource.
In the light of the above government will facilitate
the following during the FNDP period:
(a) policy development;
(b) reviewing of existing legislation;
(c) decentralisation of the land administration and
management process;
(d) streamline land delivery process;
(e) empowerment of citizens;
(f) promote sensitisation of chiefs on the
importance of releasing land;
(g) human Resource Development;
(h) promote security of tenure through
registration of private and communal rights
(i) allocating of land according to the land value;
(j) strengthening coordination among land
administration institutions; and
(k) promote land use planning
The above stated policy objectives that government intends to implement

in the Plan will undoubtedly improve the land alienation process and
effectively enhance people’s access to land.
21.13 Case Law
(a) Powers of the Commissioner of Lands to allocate land -

Circular No. 1 of 1985; Circular No. 1 of 1985 is intended
to give guidelines to the District Councils which make
recommendations for allocation of land to the
Commissioner of Lands. The circular is not directed at
the Commissioner of Lands. The Commissioner of Lands
is entitled to award more than 250 hectares depending
on the circumstances of each case
Yengwe Farms Limited v. Masstock Zambia Limited and Others

(1999) ZR 69
Court delivered by CHAILA, JS]
This is an appeal against the decision of the High Court (Mrs I.

Mambilima, J) refusing to grant the declaration sought in the
motion brought by Yengwe Farms Ltd, hereinafter referred to
as the appellant against Masstock Zambia Ltd, the Commissioner
of Lands and the Attorney General, hereinafter referred to as
the 1st respondent, the 2nd respondent and the 3rd respondent,
respectively. When the matter was argued before us on 23rd
February, 1998, no advocate appeared on behalf of the 2nd and
3rd respondents. The court had, however, before it heads of
arguments filed on behalf of the 2nd and 3rd respondents. On
26th May, 1998, the Attorney General’s office on behalf of the
2nd and 3rd respondents submitted supplementary list of
authorities. We will consider these submissions in our judgment.
The brief facts of the case were that the appellant was given
a 99-years lease for Farm No. 4890 in 1986. Initially the appellant
had applied for 10,000 hectares in the Lusaka rural area. The
application was considered by the District Council after
necessary consultations with the local chief and the people and
was sent to the Commissioner of Lands. The application was
then considered by the Commissioner of Lands and the appellant
was given 2,000 hectares and title deeds were issued. Later
after obtaining the Title Deeds, the President of the Republic of
Zambia approved two farms for the 1st respondent. The
President directed that the 1st respondent be given 20,000
hectares of land.
The Commissioner of Lands however reduced the allocation
to 5,000 hectares of 2,500 hectares of each farm. One of the
farms encroached on Farm No. 4890. The encroachment
created took the parties to the High Court. The Commissioner
of Lands directed the appellant to surrender title deeds to his
farm and informed him that he (the Commissioner of Lands)
had made a mistake in allocating the appellant 2,000 hectares in
Trust Land and that the committee had only approved an
allocation of 18 hectares of land.
The Commissioner of Lands relied on the contents of circular
No. 1 of 1985, which restricted allocations in reserves and trust
lands.
The learned trial Judge found that the appellant had followed
all the normal procedures in obtaining the land. She further
found that the appellant had not used unorthodox means to obtain
the land and title deeds. The learned trial Judge on the facts
before her found that the appellant applied for land properly
which was given, unfortunately outside the legal competence of
the Commissioner of Lands. The learned trial Judge was of the
view that the Commissioner of Lands should in all fairness grant
what he should have validly granted at the time or by seeking
the Minister’s approval, grant him more acreage seeing that the
local people had welcomed the appellant in the area. The learned
trial Judge went further to say that if that were not possible,
then the appellant should be compensated for its investment on
farm No. 4890 and any loss of business suffered to be assessed
by the Deputy Registrar.
Messrs Shamwana and Hakasenke on behalf of the appellant
have advanced three grounds of appeal. These are:
1. The learned trial Judge erred in law and in fact in
holding that the President can make valid dispositions
of land notwithstanding circular No. 1 of 1985 and that
if he steps on other people’s toes, then the constitutional
provisions on compensation came into play;
2. The learned trial Judge erred in law and in fact, in not
making any of the specific declarations and/or orders
sought by the appellant and leaving it to the discretion
of the Commissioner of Lands; and
3. The learned trial Judge erred in law and in fact in
holding that the Commissioner of Lands did not have
powers to allocate the mass of land he allocated to the
appellant.
Mr Shamwana on ground one submitted that the learned trial
judge was wrong in saying that the President as a custodian of
all land can make unrestricted dispossessions of land. He
referred us to section 4 of the Land (Conversion of Titles) Act,

which provides that the President holds the land not for his
beneficial interest, but on behalf of the people of Zambia. To
him the interest of the people of Zambia affected must be taken
into account. He submitted further that in accordance with
circular No. 1 of 1985, the power of the President is specifically
limited. He drew our attention to section (d) of the circular on
reserves and trust lands. He concluded by saying that in making
any grant, the State cannot ignore the requirement in section (d)
because the President does not hold the land for his own benefit
but as trustee for the people of Zambia. Mr Shamwana argued
further that even if the President has such powers to dispose of
land, which, in his opinion, the President did not have, the
President cannot exercise such power to deprive of any interest
already being enjoyed. State Counsel argued further that for
the President to do so, he would first have to compulsorily acquire
the land from the applicant. In this case he did not do so. Instead,
Mr Shamwana argued, the President went about business by
trying to enter through the backdoor. He maintained that the
President in approving Farm 5062 and another farm in 1988, he
did not carry out any consultations with the local people.
Whereas on the other hand, the appellant consulted everybody
concerned and in fact complied with the requirements of circular
No. 1 of 1985, even though at the time it had not been issued.
It can be seen from Mr Shamwana’s argument that his client
was very unhappy when he was asked to surrender the title
deeds to the farm after he had done all the necessary
consultations with the people and the local chief. His client was
further not pleased to be ordered to surrender part of his farm
to someone who had not complied with the requirements for
granting land in the reserves and trust lands.
The appellant’s counsel complained bitterly about the
conclusion of the learned trial Judge when she said at page 11
of their judgment:
Thus while it is desirable that all interests in the

land be taken into account, the President can make
valid dispositions of land notwithstanding land
circular No. 1 of 1985. If in the process he steps
on other people’s toes, then the constitutional
provisions on compensation come into play.
Mr Shamwana drew our attention to the provisions of section
14(c) of the Interpretation and General Provisions Act, Cap 2.
He also drew our attention to the case of Thixton v. Attorney
General99 Mr Shamwana argued that when the President
gave two farms to the 1st respondent, he did not have in mind
that the appellant was the owner of farm No. 4890. Mr
Shamwana maintained that for the President to dispose of the
appellant’s interest in his farm, he must first compulsorily acquire
land from him and that evidence in the court below showed no
such steps were taken. Instead, the President ordered the
Commissioner of Lands to give the 1st respondent 20,000
hectares of land but the Commissioner of Lands advised the
President he could only grant 5,000 hectares of land divided into
two farms of 2,500 hectares each.
Mr Simeza, counsel for the 1st respondent relied on his
detailed written submissions. His position was that the President
under the Land (Conversion of Titles) Act, was the only owner
of land which he held in position of a trustee for the people of
Zambia. He was the only person with absolute power of
disposition of land and according to section 3 of the Land
(Conversion of Titles) Act, the land referred to include traditional
land, reserves and trustland. He referred us to the case of
Bridget Mutwale v. Professional Services Ltd.100 This case
dealt with failure to obtain prior Presidential consent, which
rendered the whole transaction in land unenforceable. We have
read with authority and we do not think it applies to the present
case.
Mr Simeza further referred us to Datson Siulapwa v.
Namasiku 101 in which it was held that the 1975 Land
(Conversion of Titles) Act is applicable to land held under
customary law. This is a High Court case. It was concerned
with the President’s consent. In this case the question of consent
is not in issue. It is not the appellant’s case that the Land
(Conversion of Titles) Act does not apply to customary land,
reserves and trust land. What is in issue in this case is whether
the Commissioner of Lands was competent to allocate the land,
which he did, to the appellant and whether it was done through
a mistake or fraud to attract the cancellation of the title deeds.
Mr Simeza referred to circular No. 1 of 1985 and argued that it
was intended to lay down general policy guidelines regarding
99
(1966) ZR, at p. 10.
100
(1984) ZR 72.
101
(1985) ZR 21
the procedures all district councils were expected to follow in

the administration and allocation of land. To him this circular
was in no way meant to fetter the President’s statutory powers
and besides the circular itself, in its introduction, clearly spelt
out to whom it was directed. He argued that the President had
no obligation under the Land (Conversion of Titles) Act to consult
the local people because the circular issued by the Minister of
Lands was not directed at him.
Mr Simeza in his heads of arguments maintained that the
Certificate of Title for Farm 4890 was issued to the appellant by
error or mistake of fact. He argued that the Registrar was
correct in cancelling the register since there was a mistake.
On ground one, counsel for the State argued that the learned
trial Judge was on firm ground when she held that all land vested
absolutely in the President of the Republic of Zambia. The
absolute vesting of all land in Zambia is contained in section 13
of the Land (Conversion of Titles) Act that has since been
repealed and replaced. The learned counsel for the State
referred us to the case of Mutwale v. Professional Services
Ltd where it was held that if prior Presidential consent is not
obtained for a sub-lease, the whole of the contract including the
provision for payment of rent is unenforceable. He further
referred us to the case of Zandamela v. Management
Committee of the Local Authorities Superannuation
Fund.102 The learned advocates for the 2nd and 3rd respondents
discussed in detail the President’s powers and need to have
state consents.
As we have already stated, the present case was not
concerned with President’s consent. These authorities are not
relevant to the present case. The learned counsel then discussed
the effect of circular No. 1 of 1985, vis-à-vis the powers of the
President. The learned counsel argued that it was in dispute
that the circular was intended to lay down general policy
guidelines regarding the procedure all the District Councils were
expected to follow in the administration and allocation of land.
The learned counsel argued that the circular was not put into
law and hence it cannot have force of law. He referred us to
the case of Muyawa Liuwa v. The Attorney General.103 The
learned counsel argued further that the power of the President
remained unfettered and he could make valid dispositions of
land notwithstanding circular No. 1 of 1985. We have seriously
considered this circular to which we shall later refer in detail.
102
(1978) ZR p. 144
103
No. 43/96
The circular was not directed at the President and it dealt with
recommendations by the District Councils to the Commissioner
of Lands. The circular itself did not fetter the powers of the
President. We would however, like to observe that tenure in
Trust lands and Reserves was governed by the Northern
Rhodesia (Native Trust lands) Orders in Council, 1947 to 1963
as amended by the Zambia (Trust land) Order, 1964 repealed
and replaced by the Lands Act 1995. These orders provided
restrictions in alienation of land held under customary tenure.
These restrictions are now to be found in section 3 (4)(c) of
the Lands Act which reads as follows:
3(4) notwithstanding subsection (3), the President

shall not alienate any land situated in a district or
an area where land held under customary tenure
(C) Without consulting any other person or body
whose interest might be affected by the grant.
Restrictions are there even without circular No. 1 of 1985.

Even in the present case, the appellant wanted 10,000 hectares
of land, but the allocation was reduced to 2,000 hectares. The
1st respondent wanted 20,000 hectares but was given 2 farms
of 2,500 hectares each. The appellant’s interest should have
been taken into account, but the State has argued that the
appellant’s farm was not 2,000 hectares, but 18 hectares and to
them there was no interest to be affected since a mistake had
been made. We will deal with the question of mistake later in
our judgment.
As regards section 11 (1) of the Lands and Deeds Registry
Act, Counsel for the State has referred us to the Certificate of
Title in favour of the appellant. He argued that the Deeds
Register procured by fraud or mistake may be rectified if the
Registrar considered such allegations have been satisfactorily
proved.
The Registrar may correct such error, omission or entry.
The learned counsel for the State submitted that the directive
by the Commissioner of Lands to the Registrar of Lands and
Deeds to cancel the registration and recalling in the appellant’s
Certificate of Title in respect of farm 4890 was lawful under the
said section.
The learned counsel drew our attention to the case of Re:
139 Deptford High Street Ex Parte British Transport
Commission.104 The learned counsel gave a detailed account

of the history of the application by the appellant and concluded
that the Commissioner of Lands had made a mistake in issuing
title for 2,000 hectares instead of 18 hectares, which had been
authorised. It is a fact that the State has not appealed against
the finding of the learned trial judge on the alleged mistake by
the Commissioner of Lands. The learned trial Judge found that
the appellant had done everything that was required of him and
that the Commissioner of lands had not made any mistake. It
cannot, therefore, be argued by the Commissioner of Lands or
by the Attorney General’s office that a mistake was made.
As regards ground two, the learned counsel for the appellant
drew our attention to what the learned judge said after having
found that the Commissioner of Lands did not have powers to
allocate the mass land to the appellant. The court below
observed that the Commissioner of Lands in all fairness should
grant a maximum of 250 hectares to the appellant or seek the
Minister’s approval for more. The learned trial judge further
observed that if that were not possible, then the appellant should
be compensated for the investment on the said farm.
We now turn to ground three. The appellant was not satisfied
with the directives or advice the learned trial judge concluded
that the appellant had found himself in an unfortunate situation
and that she could not do anything since according to circular
No. 1 of 1985, it stopped the Commissioner of Lands from giving
mass land to the appellant. She was, however, of the view that
the Commissioner of Lands should have at least given 250
hectares to the appellant. The learned trial Judge’s position was
quite clear. Her conclusion was that the Commissioner without
the Minister’s approval could not give more than 250 hectares.
The learned advocate for the State and Commissioner of
Lands submitted that circular No. 1 of 1985 has no force of law
because it was intended to lay down general policy guidelines
regarding the procedure in the administration and allocation of
land. He submitted further that the circular was an instruction
to the Commissioner of Lands by the Minister responsible for
land matters. He argued further that even though the
Commissioner of Lands is empowered by the President to make
grants or dispositions of land to any person, the Commissioner’s
powers are subject to the special or general directions of the
Minister aforesaid. In this matter, the Minister issued circular
104
(1951) CH Division, p. 884
No. 1 of 1985, which restricted the allocation of land by the
Commissioner to the maximum of 250 hectares for farming
purposes. The advocate for the State further submitted that the
learned trial judge was on the firm ground when she held that
the Commissioner of Lands did not have powers to allocate
mass land he allocated to the appellant….
As we have already observed the case centres on the powers
of the Commissioner of Lands and the interpretation of circular
No. 1 of 1985. It is common cause that in accordance with
provisions of the repealed Land (Conversion of Titles) Act, all
land in Zambia is vested absolutely in the President of the
Republic who holds the same on behalf and for the people of
Zambia in perpetuity. The dispositions or grants of land to the
subjects have been delegated to the Commissioner of Lands.
The learned trial Judge considered the provisions of the relevant
section and concluded that the Commissioner of Lands could
not, because of circular No. 1 of 1985, give 2,000 hectares to
the appellant. She concluded that the Commissioner should have
either given 250 hectares or in all fairness sought the Minister’s
approval to give more land. She took circular No. 1 of 1985 as
a directive to the Commissioner of Lands.
Counsel for the appellant have urged this court to consider
circular No. 1 as not binding on the Commissioner, since it was
directed to the District Councils. They have maintained that the
circular was intended to give policy guidelines to the councils.
The advocate of the respondents have contended that the circular
was meant as a directive to the Commissioner of Lands and
that the Commissioner was bound to follow the instruction. We
have carefully looked at the circular, the introduction says: ‘This
circular is intended to lay down general guidelines on the
procedure which all the District Councils are expected to
follow in the administration and allocation of land.’
Paragraphs 2, 3 and 4 read as follows:
2. Your attention is drawn to the fact that all

land in Zambia is vested absolutely in His
Excellency the President who holds it in
perpetuity for and on behalf of the people of
Zambia. The powers of His Excellency the
President to administer land are spelt out in
the various legislations, some of which are:
The Zambia (State Land and Reserves)
Orders, 1928 to 1964; the Zambia (Trust

Land) Orders, 1947 to 1964; the Zambia
(Gwembe District) Orders, 1959 and 1964 and
the Land (Conversion of Titles) Act No. 20 of
1975 as amended. His Excellency the
President has delegated the day-to-day
administration of land matters to the public
officer for the time being holding the office or
executing the duties of Commissioner of
Lands. Under Statutory Instrument No. 7 of
1964 and Gazette Notice No. 1345 of 1975,
the Commissioner of Lands is empowered by
the President to make grants or disposition of
land to any person subject to the special or
general directions of the Minister responsible
for land matters.
3. Pursuant to the policy of decentralisation and
the principle of participatory democracy it was
decided that District Councils should
participate in the administration of land. To
this effect, all District Councils will be
responsible, for and on behalf of the
Commissioner of Lands, in the processing of
applications, selecting of suitable candidates and
making recommendations as may be decided
upon by them. Such recommendations will be
invariably accepted unless in cases where it
becomes apparent that doing so would cause
injustice to others or if a recommendation so
made is contrary to national interest or public
policy.
4. Accordingly, the following procedures have
been laid down and it will be appreciated if
you shall ensure that the provisions of this
circular are strictly adhered to.
There is no doubt that this circular was directed to the District

Councils and strict perusal of the circular shows that the Minister
of Lands gave guidelines to the District Councils on allocation
of land and recommendations to make to the Commissioner of
Lands.
As we have earlier stated in our judgment, this circular does
not bind the President. The President is however, bound to follow
the provisions of the relevant Act dealing with the former Trust
Lands and Reserves. We have carefully and critically read the
circular. We agree with the view taken by the advocates for
the appellant that the circular being a policy one was directed at
the District Councils. This circular in our view was intended to
give guidelines to the District Councils, which in turn make
recommendations to the Commissioner of Lands. The circular
was not directed at the Commissioner of Lands. The
Commissioner of Lands was legally entitled to award more than
250 hectares depending on the circumstances of each case.
The learned trial Judge was in error when she decided that the
Commissioner of Lands was precluded by circular No. 1 of
1985 from giving more than 250 hectares. The appellant followed
all normal procedures required. There was no mistake made
by the Commissioner of Lands by granting 2,000 hectares and
in issuing title deeds. We grant the following orders:
(a) The 1st respondent is restrained whether by
themselves, their servants or agents or whosoever
from disturbing, interfering or in any way preventing
the appellant; its agents or servants from quiet
enjoyment and occupation of farm known as No.
4890 Lusaka Rural in the extent of 2285. 6464
hectares;
(b) The appellant is a registered owner of the farm;
(c) That the cancellation and rectification records at
Lands and Deeds Registry are null and void and that
that the appellant should get back his title deeds;
(d) Any improvements made by the 1st respondent
should be assessed.
In Shiyenge v. Muntemba and Others,105 the plaintiff claimed

damages for trespass to his land being farm No. 5400 Chisamba
(alleging that the defendants had cultivated gardens on various
parts of his land) and sought a permanent injunction to prevent
the defendants or their servants and/or agents from interfering
with his personal enjoyment of the said farm. The plaintiff was
allocated the land by Chief Chamuka in consultation with the 1st
defendant headman. At the time of allocation, the land was
traditional land. The plaintiff later applied for a certificate of
title after consulting the village headman and Chief Chamuka
who both consented in writing to the plaintiff obtaining title deeds
105
1990/HP/935 [High Court, unreported]
to the land. Kabwe Rural Council at Chibombo, favourably

approved his application for the conversion. The plaintiff was
subsequently issued a certificate of title to his land by the
Commissioner of Lands. After he acquired title deeds to the
land, the defendants demanded that he leaves the area as they
alleged that he obtained the title deeds for the farm fraudulently
and that the headman who allocated him the land was not a
headman after all.
In the course of delivering the Judgment, High Court Judge
Mambilima, J (as she then was) observed and commented thus:
From the evidence on record, it is not in dispute

that the plaintiff is currently the registered proprietor
of farm No. 5400 Chisamba. It is also common
cause that the land on which the said farm is
located was converted from reserve and trust land
i.e. traditional land to state land on application by
the Plaintiff. The contention by the Defendants now
excluding the first Defendant was that the Plaintiff
had the land converted to state land fraudulently
and hence the counter claim that the certificate of
title obtained by the Plaintiff be set aside and that
the Plaintiff should be removed from this land for
having cheated the villagers that he would settle
among them as a villager. Section 34 (1)(c) of the
Lands and Deeds Registry Act Provides:
No action for possession or other action for

the recovery of any land shall lie or be
sustained against the registered proprietor
holding a certificate of title for the estate
or interest in respect to which he is
registered except in any of the following
case, that is to say:-
(c) the case of a person deprived of any
land by fraud , as against the person
registered as proprietor of such land
through fraud…..
It is clear from this provision that if the Defendants

can prove that the Plaintiff obtained his certificate
of title fraudulently, then his title can be set aside.
The procedure for converting traditional land to
state land is well illustrated in Land Circular No.1
of 1985, issued by the Ministry of Lands on 10th
May, 1985. The circular outlines the procedure on
Land alienation. On Reserves and Trust Lands, it
provides:
(i) In the reserves and trust lands, the

powers of the President, in making
grants or dispositions of land, are
limited by the requirement to consult
local authorities affected by such
grants or dispositions of land.
(ii) Local authority, in the Orders has
been administratively understood to
mean the chief and the district
council. This means therefore that
the consents of the chiefs and the
district councils shall continue to be
the basis for any approval of
application for land in the reserves
and trust lands.
The circular goes on to state that the Commissioner

of Lands will thus insist on the following documents
when processing applications for grants or
disposition of land:
(a) written consent of the chief under his
hand;
(b) extracts of minutes of the Committee
of the Council responsible for land
matters; and
(c) extracts of minutes of a full Council
meeting.
Not more than 250 hectares may be allocated. The
allocating authority must physically inspect the land
applied for to make sure that settlements and other
persons’ interest and rights have not been affected
by the approval. In this case the plaintiff’s evidence
shows that Chief Chamuka consented to the
allocation as evidenced by the letter which the chief
wrote to the Council. Indeed, in his evidence in
court, the chief said that he approved the allocation.

It is on record that on the initial allocation there
was for 250 hectares but objections were received
from headman Kalaswa the fifth defendant
necessitating a scaling down of the farm to 197
hectares leaving out headman Kalawasa’s area.
An objection from headman Shikwesa was
brushed aside when it was established that the land
he complained of did not belong to him.
The defendant‘s position seems that headman
Muntemba (first Defendant) who offered the land
to the plaintiff is not a legitimate headman since,
according to Jeff Miyanda (headman Katatala) he
comes from the paternal side. Jeff Miyanda told
the court that he is the one heading Muntemba’s
Village. Chief Chamuka told the court that he
recognises Daniel Muntemba as headman
Mulambwe. Being the chief of the whole area it
is for him to recognise the headman in that area
and if he says that Daniel muntemba is a legitimate
headman then that is so. In terms on land circular
1 of 1985, however, it is the chief who must approve
and indicate his approval in writing which appears
to have been done in this case. The chief told the
court that he visited the land in question and it did
to incorporate any villages or fields and that the
land was allocated after being surveyed.
From the evidence of the chief, it appears the
plaintiff made his intentions known from the
beginning. But it would appear that the other
headman took up the issue with the plaintiff on
learning that the plaintiff was obtaining title deeds
to the land. Chief Chamuka told the court that he
held a meeting with the village headmen concerned
and told them that government had authorised people
to get title deeds in reserves and trust lands.
I find it difficult however, to believe that the
headmen concerned did not know that the plaintiff
was getting title deeds for the land. It is on record
that the initial allocation of 250 hectares was
slashed down to 197 hectares to accommodate
some objections. Headman Kalaswa conceded
upon being shown the original map and the new
map that the area he complained of had been left
out of the land allocated to the plaintiff
Daniel Muntemba who had initially approved
the allocation as headman later changed his mind
and wrote a letter withdrawing his support. His
own explanation is that he was threatened, hence
the letters he later wrote questioning the allocation.
Indeed headman Katatala told the court that he
manhandled the first defendant intending to fight
him. It would be far fetched therefore for one to
conclude that the first defendant’s behaviour was
as a result of threats and hence when it came to
giving of evidence in court, he sided with the
plaintiff.
As to the 3rd defendant’s claim that part of this
land belongs to him as his inheritance from his late
brother, I should point out that when the court
visited the area, there were no settlements on the
farm and what the 3rd defendant identified as his
brother’s land appeared to be an abandoned
settlement with a few mangoes growing. This lends
credence to the evidence of the plaintiff that when
the issue of the third defendant’s brother’s title was
discussed at a meeting, the chief had explained
that the brother to the 3rd defendant had temporarily
settled on the land before moving to another area
called Shikwesha which is not part of the farm.
On what is before me, I do not find any
evidence of fraud on the part of the plaintiff. From
the beginning Chief Chamuka and the first
defendant knew the intentions of the plaintiff and
the interests of those affected were taken into
account. I find that the appellant’s certificate of
title was properly obtained in compliance with land
Circular No. 1 of 1985. As a registered proprietor
therefore, the plaintiff cannot be ejected from the
land in question. For this reason the counter-claim
fails…
Her ladyship went on to consider the claims for damages for

trespass and the claim for a permanent injunction. The claim for
damages for trespass could not succeed for lack of evidence.

As for the permanent injunction the same was granted restraining
the defendants and their agents or servants from interfering
with the plaintiff’s peaceful enjoyment of farm 5400 Chisamba.
21.17 Conclusion and Summary of Chapter Twenty-one
The Zambian land delivery system is severely constrained due

to the various bottlenecks in the system of land delivery and
administration. The centralisation of title registration has led to
inefficiency and delays in the acquisition of title to land. The
centralisation of title registration further makes the process of
acquiring land costly in terms of time and financial resources.
The Ministry of Lands needs to extend its branches and
operations to provincial and district levels in order to make land
more accessible to the public. This would make the land alienation
process simpler and efficient.
There is need for a comprehensive review and harmonisation
and updating of various land related laws so as to have a clear
regulatory framework for land administration and alienation.
There is in particular urgent need to streamline the functions of
the various institutions involved in land administration and
alienation.
There is urgent need to beef up the Survey Department.
Delays in the approval of surveys have severely hindered
transactions in land. The Survey Department must be seen as
an integral part of the land delivery system, a service section for
the Lands Department and the Lands and Deeds Registry, which
actually allocates land and registers interests in land including
issuing title deeds. As regards the office of the Commissioner
of Lands, there is need to promulgate legislation that will define
the authority, jurisdiction and powers of the Commissioner of
Lands.
839
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843
INDEX
A
Adverse possession 619, 620, 640, 641, 642
Air Space 42, 43
Annexation 56, 67
B
Barotseland 352, 364, 365, 372, 373, 768, 781, 786
Barotseland Agreement 372, 373
Bonafide purchaser for value without notice 80, 82, 283
British South Africa Company 351, 352, 354, 360
C
Chattels 6, 24, 57, 62, 161, 558
Claims to ownership of land 352
Co-ownership 69, 89
Common law 5, 8, 9, 11, 15, 24
Compulsory acquisition 8, 50, 371, 473
Contingent interests 38
Conversion 21, 82, 311, 377, 380
Conveyance 7, 63, 70, 161
Corparcenary 69
Covenant for quiet enjoyment 24, 26, 40, 43, 52, 57, 156
Covenants 95, 97, 136, 149, 157, 413
Crown 6, 16, 20, 32, 39, 41, 54, 355
Crown land 21,353, 360, 362, 365
D
Demise see lease 91, 95, 102, 124, 343
Derogation 96, 621, 642, 644, 648
Distress for rent 13, 328, 530
Doctrine of notice 243, 751
Dorminant Tenement 159, 214, 215, 216
E
Easements 5, 7, 37, 151, 158, 159, 213, 216, 217, 218
Enforcement notice 681, 682, 683, 717
Enjoyment 24, 26, 40, 43, 52, 57
Entail 21, 371, 396
Equitable interests 7, 243, 246, 263, 326
Equitable mortgages 184, 185

Equitable remedy 316, 319, 329
Equitable rights 12, 143, 243, 244, 245
Equity 8, 9, 11, 12, 13, 99, 143, 144
Escheat 19
Estate pur autre vie 22, 23
Estates of freehold 21, 23
Estoppel 95, 97, 99, 146, 159, 319
Exclusive possession 91, 92, 93, 102, 105
F
Fee simple 21, 22, 23, 26, 37, 38, 54, 70, 247
Fee simple absolute in possession 759, 771
Fee tail 21, 23, 71
Feudalism 16, 17, 18
Fittings 62, 79, 745
Fixtures 55, 57
Foreclosure 168, 170, 179, 185
Forfeiture 19, 97, 158, 413
Future interests 25, 26, 38
H
Hereditaments 288
I
Implied covenant for quiet enjoyment 156
Improvements 44, 63, 76, 87, 193, 258, 317, 382
In personam 174, 244, 245
In rem 244, 245
Interests 5, 7, 24, 25
J
Joint tenancy 69, 71
Jus accrescendi 69, 71, 87
K
Knight service 18
L
Land 5, 7
Landlord 9, 50, 57, 78, 93
Lease 5, 7, 22, 23
INDEX 845
Legal estate 23, 64, 95, 164, 245
Legal interest 7, 89, 323
Legal mortgage 162, 163, 181, 184
Lewanika Concessions 351, 785
Licence 48, 62, 92, 97
Bare 96
Contractual 98
Coupled with a grant or interest 100
Protocted by estoppel 96
Life estate 23, 22, 23
Local authorities 378, 412, 465, 532, 665, 686, 720
Local plan 667, 669, 670
Lost modern grant 218, 219, 220
M
Minerals 40, 44, 55, 352, 364, 464
Mortgage 5, 7, 37, 55, 58, 72, 99, 161
N
Neighbour 34, 46, 51, 214, 222, 223, 237
Notice 62, 80, 82, 99
Nuisance 40, 46, 51, 52, 53, 240
O
Ownership 5, 6, 23, 24, 38, 39
P
Part performance 163, 181, 265, 269, 271
Periodic tenancy 94, 573, 575, 576
Permit of occupation 179, 339, 364, 614, 624, 628, 786, 793
Perpetuities 27, 38, 174, 178, 244, 245
Personal property 6, 19, 24, 28, 38, 179
Personality 6, 24, 55
Personam 174
Planning permission 47, 186, 194, 273, 317, 439, 590
Possession 6, 7, 20
Prescription 217, 218, 219
Profits 7, 70, 75, 80
Proprietary estoppel 99
Q
Quasi 215
R
Re-entry 105, 327, 329, 414, 444, 447
Real property 5, 11, 15, 226
Reality 6, 24, 55, 59
Receiver 168, 169, 171, 184, 185
Redemption 162, 164, 165, 166
Remainder 22, 24, 25, 59, 452
Remainderman 55, 58
Rent 9, 13, 50, 76
Reserves 34, 218, 233, 365
Crown lands 365
Native 364
Trust land 367
Reversion 22, 24, 25, 602
Riparian 41
Royal Charter 351
S
Servient tenement 213, 214, 215, 218, 239
Servitudes 213, 226, 240, 241
Settlements 20, 25, 26, 27, 28, 468
Socage 18
Specific performance 97, 98, 101, 243, 250, 251
Structure plan 669, 670, 671
Subletting 125, 126, 127, 128
Successive interests 24,25
Survivorship 69, 71, 87
T
Tenancy 23, 50, 59, 69
at sufferance 94
at will 23, 93
by estoppel 94
in common 69, 71
joint 69
periodic 94
Tenant 9, 17, 18, 22, 50, 55
Tenant for life 30, 55
INDEX 847
Tenures 6, 16 18, 408
Term of years 22, 24, 90, 104, 474
Tort 4, 40, 42, 53
Treasure trove 41
Trust 9, 25, 26, 27, 28
U
Unities 70
V
Vested 7, 17, 26, 30
Villain tenure 18
W
Water rights 41, 46
Wild animals 41, 48

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PART ONE

Chapter one, An Introduction to Land Law in Zambia, is an introductory

AN INTRODUCTION TO LAND LAW IN

1.0 INTRODUCTION: The Nature and Scope of Land Law

Broadly speaking, the law of real property (or land law) is

1.1 Proprietary Nature of Interests or Rights in Land

Proprietary rights in land are interests in land, whether legal

…‘land law rights’, even if created by a contract,

Leases, mortgages, easements and profits are examples of

There are generally two categories of proprietary rights or

1.2 Sources of Land Law in Zambia

The sources of Land Law in Zambia may be found in statutes

1.2.1 Statutes Enacted by the Zambian Legislature

The Constitution of Zambia18 is the supreme law of the land.

1.2.2 English Common Law

The English Law [Extent of Application] Act34 (whose object,

2. Subject to the provisions of the Constitution of

which hereafter shall be applied thereto by

Hatchard and Ndulo have observed that chapter 11 of the Laws

For a statute of such fundamental significance,

Zambia, being a former colony of England, is a common law

The Common Law affecting Real Property has in

Megarry and Wade have observed, in relation to England, that

1.2.3 Principles of Equity

Equity may be defined as that body of law or principles that was

1.2.4 Customary Law

The law that existed in Zambia before the advent of colonialism

1.2.5 English Statutes

1.2.5.1 English Statutes Applicable to Zambia by Virtue of the

The vagueness of the English Law (Extent of Application) Act

1.2.5.2 English Statutes Applicable to Zambia by virtue of the

The preamble to the British Acts Extension Act53 provides, that

An Act to provide for the extension or application

Section 2 of the Act provides that the Acts of the Parliament of

No action shall be brought by any other person to

1.2.5.3 Judicial Precedent

Like most other countries formerly tied to England as colonies

(i) The principle of stare decisis is essential to a

1.2.5.4 Textbook Writers

Textbooks may also be recognised as sources of land law. For

1.3 The Two Basic Doctrines of English Land Law

1.3.1 The Doctrine of Tenure

The outstanding feature of the English Land Law,

A graduated system of jurisdiction based

One of the effects of feudalism in Europe and in

Quia Emptores of 1290

However, changes were under way. In the year

land law in two particular respects. First, it settled

Tenure Abolition Act of 1660

The most vexing aspects of the medieval feudal

Law of Property Act, 1925

One of the most important social changes brought

one part of a city to another, thereby making way

1.3.2 The Doctrine of The Estates

The doctrine of tenures dealt with the conditions on which land

There were three estates of freehold at common law, viz.: fee

(i) Fee Simple Estate

This is the largest estate in terms of duration and is as near to

(ii) Fee Tail

A fee tail estate is an inheritable estate which lasts as long as