THE UNIVERSITY OF ZAMBIA

INSTITUTE OF DISTANCE EDUCATION

SCHOOL OF LAW

NAME OF STUDENT: CROSS SILWAMBA

STUDENT IDENTIFACTION NUMBER: 19000658

COURSE CODE: LPR 3920

NAME OF LECTURER: Mr. Greenwell Lyempe

DATE: 28th July, 2021

CONTACT DETAILS: MOBILE NUMBER 0962043818; EMAIL ID:

Cross.Silwamba@kcm.co.zm

Test 1

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QUESTION 1

As stated in the case Lace v Chantler 1944, a lease agreement must provide the leasee exclusive
possession of the property for a certain length of time in order to be legal. Furthermore, in the
case of Jacks v O'Connor, it was argued that a legitimate lease agreement gives an individual
exclusive ownership of the property, excluding others, even the landlord. The court went on to
say that if there was no grant for exclusive possession, there was no lease agreement, and that the
grant was only a revocable license, implying that the landlord still has exclusive possession of
the property.

In Appah v Parn Cliffe Investment ltd, it was determined that the plaintiff was a licensee for the
prize rather than a tenant, and that she did not have exclusive possession of the room since the
landowners still had exclusive ownership. In essence, a lease exists when the occupier of the
property is allowed exclusive possession of the premises, and if such a right is not provided to
the guarantee, the guarantee is just holding a license, which is a revocable interest.

Lease with John Banda

The lease agreement between Pwalala and John can be claimed to be a legitimate lease
agreement since it meets the criteria for a valid lease agreement in that it is for a defined period
of time, namely two years, and it is for the sole use of John Banda's three bedroomed house.

Lease with Emmy Chanda

According to the argument in the Lace v Chantler instances, the proposed lease agreement with
Emmy Chanda may be viewed as a simple license allowing Emmy to utilize the two-bedroom
residence for a certain length of time of three years. However, because the condition prevents
Emmy from having exclusive possession of the property, it fails to fulfill the criteria for a legal
lease, as stated in the Appah decision.

Hazel Sampa

This same proposed lease agreement between Pwalala and Hazel is invalid because it does not
fully meet the requirements of a valid lease, as was asserted in the case of Jacks v O'Connor, in
which a purported lease agreement was found to be invalid on the basis that it did not contain a
date on which the proposed lease would begin.

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The lease is a legal instrument that creates a legal right to use land for a set period of time. A
lease is legitimate if two conditions are satisfied, according to this definition. To put it another
way, a lease must grant the renter sole ownership of the property for a set period of time. The
term "certainty of duration" refers to the fact that a lease must have a start and end date in order
to be valid. In the instance of Lace vs. Chandler, this was proved. The right to keep all others out
of the premises, including the landlord, is included in exclusive possession.

The court evaluated whether a document claiming to be a lease agreement was a legal agreement
in the matter of William Jacks and Company (Zambia) Limited. The Court outlined the five basic
elements of a valid lease agreement: parties, property, term length, rent, and term start date.

QUESTION TWO

All land-based property rights can be legal or equitable. The difference in how legal and
equitable rights impact new owners of property over which such rights exist is one of the
implications of the legal/equitable divide. If the right is lawful, it will bind all transferees of the
land it covers. In other words, as was decided in Chona V. Ever Green Farms Limited, "legal
rights bind the whole globe" and those with the authority to enforce them might use them against
any new landowner or occupier.

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 exist. An equitable right binds every transferee of
land except equity’s darling that is a bonafide purchaser for value of a legal estate in the land
who had no notice of the equitable right. Most of the requirements under the bonafide purchase
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 enquiries of third persons who happen to be in
possession of the land, he is affected with notice of all equitable interests held by them.

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A lease is defined as an interest in land for a defined period of time and grants the proprietor the
rights to use the land, transfer that land, develop it and even enforce any rights upon that land
against a third party. Leases have two essential characteristics that have to be present for it to be
valid and these are that i) it is for a defined period of time and that ii) the person has exclusive
possession over property.

In the case of Lace v Chandler 1944 it was asserted that a lease for the duration of the Second
World War was void due to the uncertain maximum duration. A similar position was held in the
case of Jacks and Company v O’Conner were a purported agreement for a lease was held to be
invalid on the ground that it contained no date on commencement of the proposed lease.
Essentially, these cases assert that for a lease to be valid it has to be for defined and certain
period of time. The lease agreement should thus date the specific period for which the lease will
be in operation as any uncertain or lack of clarity as to the duration of the proposed lease will
mean that the lease is void and thus invalid.

The second feature is exclusive possession, which means that no one else is allowed on the
property, even a landlord if the lease is between a tenant and a landlord. In the case of Appah v
Parn Cliffe Investment ltd, it was determined that the plaintiff was a licensee for the prize rather
than a tenant, and that she did not have exclusive possession of the room since the landowners
still had sole ownership of it. In essence, a lease exists when the occupier of the property is
allowed exclusive possession of the premises, and if such a privilege is not provided to the
guarantee, the guarantee is just holding a license.

Question 3(i)

Any distinct and independent transaction offering an option to purchase may be lawful once a
mortgage has been completed, as long as it does not de facto become part of the mortgage. As
stated in Samuel v Timber, any condition prohibiting a mortgagor from reclaiming his property
after performing his duty is contrary to the nature of the mortgage agreement. According to
Section 59 of the Lands Act, a bona fide purchaser or mortgagee is not liable if his seller or
mortgagor becomes a registered proprietor through fraud, mistake, or under any void or voidable
instrument.

QUESTION 3(II)

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The Land Reform Referendum of 1969 was noteworthy because it enabled for legal advances on
property deprivation protection. It claimed that forced acquisition had to be carried out under the
authority of an Act that provided for compensation, and that this broadened the grounds for
compulsory acquisition of land under any legislation pertaining to abandoned, uninhabited, or
underdeveloped land.

This referendum also stripped the courts of the ability to set the amount of compensation, as the
National Assembly would do so, leaving the courts to deal exclusively with problems of
inadequate compensation. Although the 1969 Referendum allowed for property rights to be
protected against deprivation, it also reduced the security of land rights by making them
conditional on the land being put to good use, failing which the rights may be revoked.

QUESTION 3(iii)

Compulsory acquisition is described as the seizure of property or land, or an interest in land,

from the owner without his consent, generally under legislative authority. As was also alluded to
in the Wise v Attorney General case, Section 3 of the Lands Acquisition Act enables the
president to compulsorily purchase any property of any type if they deem in their judgment that
it is desirable in the public interest. After the president exercises his power under Section 3 of the
Act, the Minister of Land is required to issue notice of intent to purchase land to those who are
interested in the property using a prescribed form.

Question 4(I)

Zambia acquired three types of land when it gained independence in 1964. State, reserve, and
trust land are all examples of this. State property, formerly Crown land, was set aside for
European settlement and economic growth, whilst reserves and trust land were mostly put aside
for African interests. Section 7 of the Lands Act maintained the evolution of customary tenure
that began before colonization. Customary land tenure is still legal and extensively utilized,
especially in rural areas.

QUESTION 4(II)

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Both statute and customary rules regulate Zambia's legal system. These laws cover the
management of land in the country, with the vast majority of it held under customary law. The
administration of land under customary law is based on numerous traditions and practices that
apply to the ethnic group to which the property belongs. On the other hand, statutory land is
controlled by a variety of laws and must be registered under the Lands and Deeds Registry Act.

Even before the establishment of statutory rules on land governed under statutory law, customary
tenure may be traced back to pre-colonial times. Land held under customary law is owned on a
communal basis, with members of the community having the right to utilize it for a variety of
reasons, including settlement, cultivation, and the provision of other basic requirements such as
household, sanitary, and agricultural water.

In Zambia, customary tenure is extremely important because it provides diverse groups with
access to land, which is a basic human right that is required for human survival and development.
Although customary land has long been a source of revenue and a low-cost settlement for many
groups, its security has been questioned since the advent of formal land rights. People were
eventually allowed to acquire title to land and property under the Lands Act, with titles granted
under the Lands and Deeds Registry Act, when the country gained independence in the third
republic.

The Lands Act allows customary land to be converted to a leasehold tenure. When customary
land is converted to leasehold tenure, it is subject to the rules of different land-based legislation,
and the enjoyment of one's land right is limited to the individuals named on the title to the
property, rather than the community, as it is under Customary law. According to Section 8 (3) of
the Lands Act, land may be changed from customary to leasehold tenure as long as the
conversion takes into account local customary rights on the property and is done in collaboration
with chiefs and anybody else whose rights may be impacted by the conversion.

As stated in the cases Zambia National Holdings Limited vs Attorney General and Lt General
Musengele vs Attorney General, the conversion of property must be done with the permission of
and in respect of the interests and rights of individuals owning land under customary law. The
commissioner of lands may proceed to award or convert the land into leasehold after receiving
consent from the chief and any other people having interests on the land and verifying that the
granting of ownership under leasehold would not do injustice to any lawful land rights.

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