(Mudenda Land Law

ACKNOWLEDGEMENTS
I would like to thank my colleagues in the law school: Professor Alfred Chanda,
Professor Carlson Anyangwe, Dr. Patrick Matibini and Mr. Mumba Malila who
read the book in draft form, for making many valuable suggestions of form and
substance. They have saved me from many errors: for those remaining I of
course am alone responsible.
I also owe a profound debt of gratitude to professor Melvin Mbao of the

Northwest University – Republic of South Africa, who also read the book in draft
form, for his critical and useful comments and observations. Professor Mbao was
further kind enough to write a fore-word to this book.
I also would wish to thank Mr. Frightone Sichone for readily agreeing to co-
author with me the last chapter of this book entitled: “Land Administration and
Alienation in Zambia.”
I would also wish to express my profound gratitude to Mr. Lombe Mbalashi,

Miss Chanda Kasanda, Mr. Paul Kachimba and Mr. Augustine Hamwela (a
former student) for their loyal assistance and commitment throughout the time
that this work was under preparation. They undertook research on the various
aspects included in this book as well as preparation and typing of this work.
I wish also to thank the Swedish International Development Agency for the grant
availed to the law school which has made the production and publication of this
book possible. My gratitude is due to the editorial staff of the University of
Zambia Press for their assistance. I also acknowledge the permission granted to
reproduce the following materials by the copy right holder - Zambia Law
Journal:
(a) Okon. E “Land Law As An Instrument of Social Change”, excerpted under
chapter one of the book.
(b) Mbao, L.M, “Legal Aspects of Uncontrolled and Unplanned Urban
Settlements in Zambia: A comment on the Housing (Statutory and
Improvement Areas) Act,1974,” excerpted under chapter nineteen of
the book.
Fredrick S. Mudenda
University of Zambia,
School of Law
Lusaka,
October, 2006.
TABLE OF CASES
Abbeyfield (Harpenden) Society Ltd v Woods [1968] 1 ALL ER 352, [1968] 1 WLR 374,
………………………..79
Ackroyd v Smith [1850], 10 CB 164, 19 LJCP 315, 15 LTOS 395, 138 ER 68, 19 Digest 12,
20……………………..138
AD Wimbush and Son Limited v Franmills Properties Limited and Others[1961] 2 ALL ER
197………………………………………………………359
Addiscombe Garden Estates Ltd v Crabbe [1957] 3 ALL ER 563, [1958] 1 QB 513, [1957] 3 WLR
980, ……………………….78, 88
AfroButcheries Limied v Evees Limited Supreme Court Appeal No. 28 of 1998 [unreported]…. 365
AfroButcheries Limied v Evees Limited (1987) Z.R. 39 ….…………………339,.363, 368, 669, 370
Agricultural Finance Company Limited v Mweemba and Another (1977) Z.R. 138 …….89
Aldin v Latimer Clark, Muirhead and Co. [1894] 2 CH 437 …………..67
Aldrington Garages Ltd v Fielder (1978) 37 P &CR 461 , ……. ..….80
Allan v Liverpool Overseers (1974) LR 9 QB 180, DC. …..75
American Cyanamid Company v Ethicon Ltd[1975] 1 All ER 504 …………………………..396
Appah v Parn Cliffe Invesment [1964] 1 WLR 1064 ……………………64
Appollo Refrigiration Services Co. Ltd v Farmers House Ltd (1985) ZR
182……………………………………………………………………………332, 343, 359, 361, 365
Associated Provincial Picture Houses Ltd v Wednesbury Corp., [1947] 2 ALL ER 680; [1948] 1 KB
223…………..62
Attorney General v Antrobus [1905] 2 Ch 188, 74 LJCh 599, 92 LT 790, 69 JP 141, 19 Digest 61,
347…………………..137
Attorney General of Duchy of Lancaster v Overton Limited [1982] 1 ALL ER 524
………………………………………………… 32
Attorney General v Trustees of British Museum [1903] 2 CH 598 at pp. 608-
611……………………………………………………………………………32
Attorney General, Ministry Of Works And Supply v Frazer And Another(2001) ZR
87………………….269
Attorney General v Zambia Sugar Co. Ltd and Nakambala Estates Limited(1977) ZR 27……235
Bailey v Barnes (1894) 1 CH 25……………………149
Ball v Western Planning Authority (1966) Z.R. 1…………………….375
Balvant Popatal Popat and HP Gauff KG and Amrat Bhaga 2002/HPC/0486 [High Court- unreported]
……………………………………………………………..56
Balvant Popatal Potal and Amrat Bhaga – Supreme Court Appeal No. 104 of 1999[unreported]…..55
Bannister v Bannister ([1948] 2 All ER 133…………………………………………………..179
Berkely v Poulett (1976) 241 Estates Gazzette 911, 242 Estates Gazette 39…..40
Betty’s Café v Philips Furnishing Stones [1959] AC20……………342, 363, 370
Biggs v Hoddinott [1898] 22 CH 307 ……………….106, 112
Billing v Phill [1953] 2 ALL ER 1061 …………………………………….48
Binions v Evans [1972] 2 ALL ER …………………69, 90, 91, 100
Bland v Moseley…………………………………………136
Bobat v Kapindula (1974) Z.R. 235 …………………..…………..71, 100
Booker v Palmer [1942] 2 All ER 674, …………….…………………77, 90, 91
Borough v Snook [1938] 1 ALL ER 411……….140
Brian Musonda v Hyper Food Products Limited, and Others (1999) ZR 124 ……. …………114, 127
Brough v Nettleton [1921] 2 Ch.25……………………166, 197
Broughton v Snook [1938] 1 All ER 411…………………..165,188
Browne v Flower [1911] 1 CH 219……..131
Bull v Bull [1955]QB 234………………………………………………53
Cadell v Palmer [1833] I Cl & Fin 372, 10 Bling 140 ……………………….19
Central London Property Trust Ltd v High Trees House Ltd (1947) KB130………188
Chenda v Phiri and Another –Lat/80/98 [Lands Tribunal-unreported]…………………….255
i
Chikuta v Chipata Rural Council (1974) ZR 241…………..407
Child v Edwards [1909] 2KB 753………….347
Chilufya v City Council of Kitwe (1967) Z.R. 115 ……72, 100
Chilufya v Kangunda (1999) (ZR) 166………………………………….236, 265,329, 341, 383, 392
Chimambo and Others v the Commissioner of Lands and Others 2005/HP/0564 [High Court-
Unreported]………………………515
Chitala v Atorney General [1995/1997] ZR 91………………………………………………………283
Chiteta v R. 1960 R. & N. 199……………………………….433
Chona v Evergreen Farms Limited /1996/Hp/2727 [ High Court-unreported]………….3, 141, 147, 159
Clark v Nash 148 US 361; 25 S. Ct., 676; 49 L. ed. 1085. ………………………269
Clerks v Wright [1737] 1 ALL ER 12 at 13…………..166
Cobb v Lane [1952] 1 ALL ER 1199, …………..77,78,90
Colls v Home and Colonial Stores Lt [1904] A.C. 179……….123, 124
Commissioner of Stamp Duties v Atwill and Others [1973] 1 ALL E.R.
576……………………………………………………………………………..312
Construction And Investment Holdings Ltd v William Jacks And Co. (ZAMBIA) Ltd (1972) Z.R. 66
………………………..384, 385, 386, 401
Copeland v Greenhalf [1952] CH 488 ………132
Council of Civil Union and others v Minister for the Civil service [1984] 3 ALL ER
935………………..285
Countess of Shelburne v Earl of Inchiquin ((1784) 1 Bro CC 338 at
341……………………………..181
Cox v African Lakes Corporation (A.L.C) ………………………..………………..205
Crabb v Arun District Council [1975] 3 ALL ER 856 ……………70
Cuckmere Brick Co. Ltd v Mutual Finance Ltd [1971] 1 CHD 949 …108, 118
Cunlife v Goodman [1950] 2 KB. 237, 253; 66 T.L.R. (Pt. 2) 109; [1950] 1 AllE.R.
720……………………………………………………..…….373, 374
Curl v Angela [1948] 2 All E.R. 189……………………………………….…..334
Daka v Patel and Another(1995/97])ZR 108………………………………118,119,123, 126
Dalton v Angus [1881], 6 App Cas 740, 46 JP 132, ………………………..135, 136
Daniels v Trefusis [1914] 1 Ch 788………………………………….140
Delaney v Smith [1946] 2 All E.R………………………………………………………….158
Diocese of Monze v Mazabuka District Council and 3 others - Supreme Court Judgment No. 16 of
2005 - Appeal No 115 of 2002 [unreported]………….. 270, 272
Drake v Mahtani And Another (1985) Z.R. 236 …………………………………287, 331, 337
Dukes of Sutherland v Heathcote [1892] 1 CH 475 ……………………..128,182
Duncan v Louch (1845), 6 QB 904, 14 LJQB 185, 4 LTOS 356, 115 ER 341, 19 Digest 115,
759…………………………………….137,140
Edwards v Edwards 2 Ch. D 291…………………………………..200
Errington v Errington (1952) 1 ALL ER 149 …..69, 77, 78, 90, 91, 100
Evans v Hoare and Another(1892)19B.T.……………..176
Facchini v Bryson [1952] 1 TLR 1386, …….…………….78,79,80,84, 90
Fairlough v Swam Brewery Co Limited (1912) AC 565 …………….100
Fawcett Properties Ltd v Buckingham Country Council [1960] 3 ALL ER 503; [1961] AC
636………………..62
Finance Bank Zambia Limited v African Eagle limited and others [1998] ZR 315 ………117, 124
Fishenden v Higgs and Hill Ltd [1935] 153 L.T. 128………….124
Fleet Electrics v Jacey Investments[1956] 3 ALL ER 99……………………………364
Foster v Robinson [1950] 2 ALL ER 342………………………………90,91

Fowler v Fowler ((1859) 4 De G & J 250………………………………………………………156
Frank Warr & Co, Ltd London Country Council [1904] 1 KB 713; sub nom. Warr & Co. v London
City Council, 73 LJKB 362…….72
G and C Kreglinger v New Pantagonia Meat and Cold Storage Company Limited [1913] AC 25
………………………………………………………………..………..103,104, 106, 111
ii
G.F Construction [1976] limited v Rudnap (z) Unitechan limited (1999) ZR 134……236
Glenwood Lumber Co Ltd v Philips [1904] AC 405, [1904-7] ALL ER Rep 203,
PC……………………75
Gorham Contractors Ltd v Field (unreported, March 26, 1952)……………………………….90
Goswani v Commissioner Of Lands (2001) ZR 31……………………………. ……….237, 266
Green v Fibre Glass Ltd [1958] 2 Q.B. 245 ……………..78
Gregson v Cyril Lord [1962] 3 All E.R. 907……………………………………………..………….364
Grimond v Duncan [1949] SC 195…………………………………….…….334
Hammer v Jumbi (Nigeria) Tin Areas Limited (1921) 1 CH 200………67
Hampako v National Housing Authority (1988/89) ZR 61…………………335
Hansford v Jago [1921] 1 Ch 322…………………………..145
Harel Freres Limited v Minister of Housing [1986] L.R.C. (Const.) 472…...310
Harvey v Pratt [1965] 2 All ER 786; [1965] 1 WLR 1025. ………………..71, 388
Haseldine v C.A Daw & Sons and another [1941] 3 ALL ER 156………..97
Hawaii Housing v Midkiff U.S. 1984, 299……………………………………………….283
Hellawell v Eastwood [1851] 6 EX CH 295 ……………………………….44
Herbert v Treherne and Others 133 E.R. 1338. …………………………………174,175, 176
Heslop v Burns [1974] 1 WLR 1241,…………………….. ……………79
Hill v Tupper (1862) 2H 8C 121…….131, 139
Hina Furnishing Lusaka Ltd v Mwaiseni Properties Ltd . (1983) Z.R. 40 …………192, 194, 203, 235
Hodson v Heuland [1896] 2 Ch 428…………….166
Howard v Harris1 Vern. 33;2 Ch, cas,147……………………….112
Hudson v Cripps (1896) 1 CH 265…………………………….66
Hulme v Brigham [1943] 1 ALL ER 204, (1943) 1KB 152 ……………….44

Humane v Chinkuli1971/HP/407 [High Court-unreported]………………………………..468
Hunt v Luck (1902) 1 CH 426…….149, 151, 154

Hurst v Picture Theatre Limited (1915) 1 KB 1 ……………………………69
Hutton v Walting (1947) 2 AII E R 641 at 641…………………………………………169
International Tea Stores Co v Hobbs [1903] 2 Ch 165, 72 LJCh 543, 88 LT 725, 19 Digest 37,
193…………………..137
Investrust Merchant Bank Limited and Another v Yousuf – Supreme Court Appeal No. 4 of 2004
[Unreported]……………………108, 120
Isaac v Hotel de Paris Limited [1960] 1 ALL ER 348, [1960] 1 WLR 239, PC……………………..79
Ismail v Patel (1951), 5 NRLR 567………………………………………..337
Jackson v Horizon Holidays Limited………………………………………..96
James Jones and Son Limited v Earl of Tankerville [1909] 2 CH440 ……………….71
Jasat v Mohamed Wali Adam Patel (1978) Z.R. 208 ……………….. 144,
Jenning v Ward [1705] 2 Vern. 520. ……………………..112
John Young and Co. V The Bankier Distillery Co. [1893] A.C 691 ……….32
Johnson v Sargant and Sons [1918] 1 K.B. 101……………………….….310
Joscelyne v Nissen ([1970] 1 All ER 1213 at 1222, [1970] 2 QB 86…………………………156
Kabwe and Another v Daka and Others Supreme Court Judgment No. 5 of 2006- Appeal No. 162 of
2003[unreported]………………………………267
Kaniki v Jairus [1967] ZR 71. ……………………………………………. 8
Kapembwa v Mulla Brothers Ltd. Supreme Court Appeal No. 23 of 1999
(Unreported)………………………..368, 369
Kasote v The People (1977) ZR 75 ………………………..…10
Katongo v Attorney General 1975 Z.R. 148…………………………………………283
Keith v Twentieth Century Club Ltd (1904), 73 LJCh 545, 90 LT 775, 40 Digest 327,
2759…………….137, 140
Kenny v Preen [1963] 1 QB 499………………………66
Kerrison v Smith, [1897] 2 QB D. 445; [1806-9] ALL ER Rep 215……..73
Killner v France [1946] 2 All E.R. p. 83…………………………………………..170
King v David Allen and Sons, Bill Posting (1916) 2 A.C. 54 ………….69,145
Kingswood Estate Co Ltd v Anderson ([1962] 3 All ER at 604……………………………165, 180, 181
iii
Knights bridge Estates Trust Limited v Byrne……………………………………….106
Konidaris v Dandiker Supreme Court Appeal No. 157 of 1999 [Unreported]
…………………………….166, 187
Kridge and Another v Christian Council of Zambia [1975] ZR 152………………………………..163,
322, 378
Kruse v Johnson [1898] 2 QB 91; [1895-9] ALL ER Rep. 105…………………………………..62
Lace v Chandler [1944] KB 368……………………………………………….…..63
Laird and Pim [1841] 7, M.& W. 474.)………………………………………………..402
Lake Kariba Boating v Kariba NorthBank Company Limited (1982) Z.R. 35……………….413
Leech v Schweder [1874], 9 Ch App Cas 463, 43 LJCh 487, 30 LT 586, 38 JP 612, 19 Digest (Repl).
136, 876 ……………………………………………………………………………...136
Leeman v Stocks [1951] 1 All E.R. 1043 [1951] CH 941……163,174,175
Leigh v Dickerson [1884] 15 QB 60………………… 65
Leigh v Sky Views and General Limited [1977] 2 ALL ER 902…………..33
Leigh v Taylor [1902] AC 157 ………………………………… 43, 44, 46, 48, 49
Le Neve v Le Neve [1747] Amb. 436……………………………………………200
Lenton Holidings Limited v Moyo – (1984) ZR 55 384, 403
Liuwa v The Attorney General No. 43/96…………………………………..436,438
Liverpool City Council v Irwin and another [1976] 2 ALL ER 39. ……67,95, 96, 98
Liverpool Corporation v H. Coghill and Son Limited [1918] 1 CH 307…………133
Lloyd v Nowell [1985] 2 Ch. D.P. 744………………………………………………146
Lloyd v Banks [1868] 3 CH 48 ………………………….149,170
London and Blentheim Estates Limited v Ladbroke Retail Parks Limited [1993] ALL ER 307…129
Lord Chesterfield's Settled Estates [1911] 1 Ch 237………………………..49
Lowe v J.W Ashmore Limited [1971] CH 545…………………………………..128
Lumanyenda and Another v Chief Chamuka and others(1988/89) ZR 194….382, 395, 398
Lusaka Auctioneers & Estate Agents Ltd. v Morton Estates Limited (1977) Z.R.
92………………………..322, 357
Lyon and Co. v London City and Midland Bank [1903] 2 KB 135……….43
Lyons v Elliott [1876] 1 QBD.210……………………………………………….347
Lyuwa v Cold Storage of Zambia appeal No. 4 of 1992 (unreported)…….144
Maddison v Alderson [1883] 8 App Cas 467………………………………………………161,165, 166,
179, 181
Magic Carpet Travel And Tours v Zambia National Commercial Bank Limited (1999) ZR 61
………………384, 404
Major Makwati v Senior Chieftainess Nkomesha Lat/60/97………………………………………262
Malin v Municipal Council Of Ndola And Kelway (1965) Z.R. 162 (TCPT)………440
Malzy v Eichholz [1916] K.B. 308………………….97
Marchant v Charters [1977] 3 ALL ER 918, [1977] WLR 1181, . ……80
Marcroft Wagons Ltd v Smith [1951] 2 ALL ER 271, [1951] 2 KB 496, ……….77
Marshall v Nottingham City Corporations, 1960, 1ALL ER 659……………………………….446

Martin v Smith 9 Ex 50 (2) ( 1874)………………………………….197
Match Corporation Ltd v Choolwe and Another Supreme Court Appeal No. 75 of 2002 …… 154,
172
Mayhew v Suttle (1854) 4 E & B 347, 119 ER 137, Ex Ch……76
McKenna v Porter Motors Ltd (1956) 3 ALL ER 262……………………………………………..374
Mehta v City of Salisbury, 1961, R & N 911; on appeal sub nom. City of Salisbury v Mehta, 1961, R &
N 1000……………….62
Mijoni v Zambia Publishing Company limited Appeal No. 10 of 1986 (unreported)…161, 170
Miller v Emcer Products [1956] CH 304 …………132
Mills v St Clair County 8 How 569; 12L. ed. 1201…………………………….269
Minos Panel Beaters Ltd v Chapasuka (1986) Z.R. 1 ………………..……………..356
Miyanda v Attorney General 1985 Z.R. 185………………………………………………………..285
Mobil Oil (Zambia) Limited v Loto Petroleum Distributors Limited (1977) Z.R
iv
336……………………………………………………………..……163,173, 184
Modern Jacks Suppliers Ltd v Strong Engineering Ltd and Another Appeal No. 50 of 2001
[Unreported]…………………..120
Monti v Barnes (1901) 1 QB 205 …………………………………………..45
Moobola v Harry Muwezwa(1990-1992) ZR 38……………………………310
Motor Traders Association of Central African and Others v Municipal Council of Mufulira- (1967)
ZR3 ………………………………………..434
Mpashi v Avondale Housing project Limited, [1988/89] ZR 140……………………….166, 183, 236
Mufalo v Nganga(1988/89) ZR 88……………………………………………..236
Mukelebai v Widmaier Supreme Court Appeal No. 116 of 1995 [Unreported]………..25

Mumba v The People (1984) ZR 38………………………………………..4
Mundada v Mulwani and Others (1987) Z.R 29……………………………………236
Municipal Council of Sydney v Campbell and Others[1925] AC 338
.………………………………………………………………..…..307
Mupwaya and Others v Mathew Mbaimbi – Supreme Court Appeal No. 41 of
1999…………………………………258, 260, 261
Murray Bull & Co Ltd v Murray[1952] 2 ALL ER 1079, [1953] 1 QB 211… 78

Musingah v Daka (1974) ZR 37………………………………………….339, 349, 356, 357
Mususu Kalenga Building Limited and Another v Richmans Money Lenders Enterprises. [1999] ZR
27…………………..354, 355
Mususu Kalenga Building Limited and Another v Richmans Money Lenders Enterprises. Supreme
Court Appeal No. 68/2002 [unreported]……………………………………..308
Mutwale v Professional Services Ltd. (1984) Z.R. page 72………………………..232, 238
Mwangela and Another v Ndola City Council (2000) ZR 131…………268

Mwenya and Another v Kapinga (1998) ZR 23…… 31, 40, 42, 150, 153, 154, 156, 167
Mwiinda v Gwaba (1974) Z.R. 188 ………………………..…………………………….487
Naik and Naik Motors Ltd v Chama(1985) ZR 227………………………….235
Namung'andu v Lusaka City Council (1978) ZR 358 ……………………………39.47, 407, 447
National Hotels Development Corporation T/A Fairview v Ebrahim Motala (2002) ZR

39………………………………………………………..………….……….40 ,42
National Housing Authority v Siamiaze and Another Supreme Court Appeal No. 49 Of 1997
[unreported]…………………….330
National Provincial Bank v Ainsworth [1952] 2 ALL ER 472……………. 3
National Westminster Bank v Kitch [1996] 1 WL.R. 1316,…………………………………………..116
Nawakwi v Lusaka City Council and Sikanyika Appeal No. 26 of 2001
[Unreported]…………………………………..152, 159
Ndola City Council v Kasonso (1995/97) ZR 233 ………………….441
New Hart Builders v Brindley [1975] 1 ALL ER 1007……….166
New Plast Industries v The Commissioner Of Lands And Another. (2001) ZR
51……………………………………….385, 406
Ngoma and Others v LCM Company Limited and Another (1999) Z.R 75 …….102
NIP Limited v Zambia State Insurance Corporation Limited (1993/1994) Z.R
144………………………………………………………64, 82, 329, 334.
Noakes v Rice [1902] [AC] CH 307 …………………………85
Northmead Supermarket Limited, and Two Others (T/A Northmed Playboy Cafe) v Lusaka City
Coucil [Unreported]…………………………………..444
Oduyeni and Others v Atlantic Investments Ltd SCZ Appeal No. 130 of 2000……269
Oliver v Hinton [1899] 2 Ch 264……152
v
Ottaway v Norman ([1971] 3 All ER 1325……………………………………………………..181
Ough v King [1967] 3 All E.R. 859……………….123, 124
Owen v Gadd [1965] 2 QB 99……………………………….66
Pacific Mother Auctions Private Limited v Motor Credit (Hire Finance) Limited [1965] 2 ALL E.R
105…………………………………………………………………………………...168
Papenfus v The Lusaka City Council [1967] Z.R. 3 ……………….…………………………..435
Paperex Limited v Deluk High School Supreme Court appeal No. 141 of 1996
………………………………………….347, 358
Parker v Secretary of State for the Environment, 1978 1WLR 1308…………….446
Parker v Taswell [1858] Ch ER Vol. 44 . 1108…….190, 197, 200
Patel v The Attorney-General(1969) ZR 99……………………314
Patel and Another v Ismail LRNR [1949/54] 563………………..378
Patel S.J (Z) Limited v Bancroft Pharmaceuticals Limited(1974) Z.R. 270 ………………….356
Perera v Vandiyar [1953] 1 W.L.R 672……………………………67
Pettit v African Lakes Corporation………………..205
Philips v Lamdin [1949]2 KB 33, [1949] 1 ALL.ER 770 …………………43, 45
Phipps v Pears [1964] 2 ALL ER 35 CA……..132, 134
Pilcher v Rawlins [1872] 7 CH 257…………………….148, 178
R v Dhama[1906] 2 C.B. 335………………………………...316
R v Keith [1855], 24 LJMC 110; Dears, CC. 486; 25LT [O.S.] 118; 19 JP 293……………………387
Radaich v Smith [1959] 101 CLR 209, Aust HC. ………………81
Ratten v Reginam ([1971] 3 All ER 801, [1972] AC 378 ……………………………………..182
Rawlinson v Ames [1925] Ch 96……………………………………….165
Re Boyer's Settled Estates [1899] 1 Ch 324………………….90,91
Re Broad, Smith v Draegar [1901] 2 Ch. 86. ………………………..335, 387
Re Carne's Settled Estates [1899] 1 Ch 324…………………….90, 91
Re Ellenborough Park Re Davies (Deceased) Powell and Others v Maddison and Another [1955] 3
ALL.ER 667 [A.C]………………136, 145
Re Hoyle [1893] 1 CH 84 at 99 ……………………..162
Re K (H) (an infant) [1967] 1 ALL ER 226; ………………………………………………………62
Re Kamaya [1987] ZR 7 …………………………………..348
Re Land and Premises at Liss, Hants[1971] 3ALL.ER 380………………………..351
Re Lord Chesterfields Estates [1911] 1 Ch 237 ………………………….43
Re. Mahmoud and Ispahani[1921] 2 K.B 716…………………………………233
Re Sir Thomas Spencer Wells [Swinburne – Hanham v Howard [1933] CH
29………………………………………………………………………………………………………111
Re Southern Rhodesia [1919] A.C 211 – ………………….………………206 , 210, 211, 214, 477
Re Wells [1933] CH 29………………………………………………………..104
Re Whaley [1908] 1 Ch 615 ……………………………..43, 44, 49
Re: Pan Electronics Ltd. [1988-1989] ZR 19 ……………………………………………….………311
Reeve v Lisle [1902] AC 461 ……………..105
Remon v City of London Real Property Co. Limited [1921] 1 KB ……65
Re Tacon v The company…………………………………..200
Reynolds v Ashby and Son [1904] AC 466 …………………………….43, 45
Roberts v Bandawe and others LAT 20/99………………,345, 398
Robinson v Waddington [1849] 13 Q 733…………………………………….348
Rochefoucauld v Boustead ([1897] 1 Ch 196 at 206…………………………………179
Roe v Siddons Fry L.J. [1888] 22 OBD 224……..130
Russel v Russel [1783] 1 Bro. C.C. 268 ………………………103
Rylands v Fletcher [1868] LR HL 330 ……………………………………31
Salt v Marques of Northampton [1892] AC 1 …………………104, 105
Samuel v Jarrah Timber [1904] AC 323 …………………….105
Santley v Wilde [1899] CH 474………………………………………………………………101, .110
Sedleigh Denfield v O’Callgahan [1946] AC 880 ………………………..41
vi
Shell & B.P. Zambia Limited v Conidaris And Others (1975) Z.R. 174 …………………….85
Shell-Mex & BP Ltd v Manchester Garages Ltd [1971] 1 ALL ER 841, [1971] 1 WLR 612,
……………………………………………………..……..79, 88
Shiyenge v Muntemba and others 1990/HP/935 [High Court-unreported]
…..440
Sithole v State Lotteries Board (1975) Z.R. 106…………………………….414
Siulapwa v Faless Namasiku (1985) Z.R. 21…………………………237, 240, 241
Siwale v Siwale [1999] ZR 84 ……………………252, 257, 260, 261, 262
Smallman v Smallman…………………………………….178
Smith v Seghill Overseers [1975] LR 10 QB 422, [1874-80] ALL ER Rep 373, DC. ………76, 91
Smith v City Petroleum Company Limited [1940] 1 ALL ER 260 ………..45
Sobhuza v Miller and others [1926] 2 AC 516………………. 477, 480
Somma v Hazelhurst [1978] 1 WLR 1014, . …………………………….……….80
Spyer v Philipson [1931] 2 CH 183 ………………………………………..44
Standard Chatered Bank v Walker [1982] 3 ALL ER 938………108, 118
Steadman v Steadman [1974] 2 ALL ER 977……………160, 164, 165, 166, 177, 185
Still Water Farms Limited v Mpongwe District Council and Others Supreme Court Appeal No.
90/2001 [Unreported]……………………………………………………259
Street v Mountford [1985] 2 ALL ER 289………………………………….………………73, 100, 355
Sturolson & Co v Weniz [1984] 272 EG 326, . ………………………………..…70
Sundi v Ravalia[LRNR] (1949-54) .345 ……………………………………196, 198, 202,203,378, 379,
470
Sutherland v Briggs [1841] 1 Hare 26 at p.32…………………………..166
T. N. J. van der Walt v The Salisbury Rural Town Planning Authority, Court …………..378
Tanner v Tanner [1975] 3 ALL ER 776 ……………………….69, 100
Taylor Fashions v Liverpool Victoria Trustees Limited..[1981] 1 All ER 897………….231
Taylor v Caldwell [1863] 3 B & S 826, [1861-73] ALL ER Rep 24, 122 ER 309. ………………….75
Teper v Reginam ([1952] 2 All ER at 449, [1952] AC………………………………………..182
Tembo v Alizwani Supreme Court Judgment No. 6 of 1996……………………..156, 469
The People v Shamwana (1982) ZR 122 …………………………………..8
Thomas Mumba v The People (1984) ZR 38……………………………...4
Thomas v Sorrel [1673] Vaugh 300 ……………………………….68, 100
Thomson v Park [1944] All E.R 477……………………………………………………90, 91
Tijan v Secretary, Southern Nigeria[1921]AC 399…..477, 478, 480,482
Tito v Waddel (No. 2) (1977) Ch. D.P. 106………………………151, 169, 170, 172
Torbett v Faulker [1952] 2 TLR 659…………………………………..90
Tottenham Hotspur Football and Athletic Co, v Princegrove Publishers Ltd. [1974] 1 ALL ER
17…………………………………….190, 193
Tse Kwong Iam v Wongchit Sen [1983] 1 WLR 1349 ……………….108
Union Lighterage Co. v London Graving Dock Co. [1902] 2 CH 557……………133
United States of America v L.Jones, and others Law ED.US 106…………………………………291
Upton v Walker [1971] 192……………………………………….412
Van Blerk v Attorney General and Another , Supreme Court Appeal No. 138 of
2002………………………..…295, 313
Vaudeville Electric Co. Ltd v Muriset [1923] 2 CH 74 ………………...45,46
Verral v Great Yarmount BC [1980] 1 ALL ER 839 ………………………57
Virginia Tobacco Association of Zambia v Medical Clinic Centre Limited- Supreme Court Appeal No.
4 of 1990. (Unreported)……………………………367
Wakeham v Mackenzie [1968] 2 All ER 783…….180, 181, 182

Walsh and Lonsdale [1882] 21 CHD 9 ……………..190,191,192, 193, 194, 195, 197, 197, 202, 203,
378
Wandsworth Board of Works v United Telephone Co. Bowen LJ [1884] 13 Q.B.D. 904
…………………………………………………………………………...33
Ward v Casale and Burney[1949-54] . 759……………………….……196, 197, 200, 203, 379
Warmington and another v Miller [1973] 2 ALL ER at 377………………….192
Warner v Jacob [1882] 20 ChD 220 …………119
Webb v Bird [1861], 10 CBNS 268, 30 LJCP 384, 4 LT 445, affd ExCh [1862], 13 CBNS 841, 31
vii
LJCP 335, 143 ER 332, 19 Digest (Repl) 69, 384. ……....136
Webb, Ltd v Webb [1951] Ch 808 …………………………….90
White v Ronald Westerman And Others (1983) ZR 135 ……………………………..381, 398
Wilkes v Spooner [1911] 2 KB 473……………………….128

William Jacks And Company (Z) Limited v O'connor, Construction And Investment Holdings Limited
Intervening (1967) Z.R. 109 ……64, 195, 367, 377, 384, 385, 386, 401
Willmont v Barber [1880] 15 CH 96 …………………..70
Winans v Attorney General…………………………………..162
Winter Garden Theatre London Limited v Millenium Productions Limited [1947] 2 ALL ER 331
…………………….69, 90, 91
Wise v the Attorney – General (1990/92) ZR 124……………………..299,302, 317
Wokoko v Molyko[1938] 14 N.L.R.L 41…………….492
Wood v Leadbetter [1845], 13 M. & W. 838; 153 ER 351………….73, 90, 91
Wright v Macadam [1949] 2 All ER 565, [1949] 2 KB 744, 19 Digest (Repl) 39, 203…………132
Yengwe Farms Limited v Masstock Zambia Limited, and others (1999) ZR 69
………………………………………..435
Zambia Building & Civil Engineering and Contractors Limited v Georgapoullos (1972) ZR
228………………………………………………………………….….162
Zambia National Holdings Limited and Another v The Attorney-General (1993/94) 115
…………………………..…300, 308, 314, 317
Zambia Oxygen Limited v Gardner Bros Limited 1982/HN/809 [Unreported]……………238
Zambia Postal Service Corporation Ltd v Attorney-General and Others. Supreme Court Appeal No. 61
of 1997(unreported)…………………………405
Zandamela v Management Committee of the Local Authorities Superannuation Fund (1978) Z.R….436
ZIMCO Properties Limited v Dinalar Randee Enterprises (T/A Empire Cinema) (1988/89) ZR 114
…………292, 312
ZIMCO Properties Limited v Hickey Studios Ltd and Marryat And Scott (Z) Ltd. (1888 /89) Z.R.181
…………67, 93
viii
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 land1. 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 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
1
Okon. E “Land Law As An Instrument of Social Change”, ZAMBIA LAW JOURNAL, Volume 17, 1985,
p46.
2
Dixon, M, land law, Cavendish Publishing Limited, London, 1994, P.1.
3
Riddal, J.G, introduction to land law, 4th Ed, Butterworths, London, 1988, p.3.
1
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, 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
4
See generally Megarry and Wade, the law of real property, 4th ed, Sweet and Maxwell, London, 2000, p.5.
5
Riddal,J.G, 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, ELBS, London, 1982, p.1.
8
Walker, D,M, the oxford companion to law, Claredon press, Oxford, 1980, p.287.
2
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
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 Mark Chona v
Evergreen Farms Limited,15 the defendant company was bound by a right
9
Hayton, D, supra, note 7 at p77.
10
Dixon,M, supra, note 2 at p.2.
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.
13
Dixon,M, supra note 2 at p.4.
14
Ibid, page 5.
15
1996/HP/2727 (unreported) – The case is excerpted under Chapter 6 dealing with Easements and Profits.
3
of way which the plaintiff had exercised on the land for more than 20
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] Act,16 and the British Acts Extension
Act17, 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
Act20. Article 16 of the constitution is discussed under chapter fourteen of
this book which deals with compulsory acquisition of property in Zambia.
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 Act21; the Lands and Deeds Registry Act22; the Land [Perpetual
Succession] Act23; the Agricultural Lands Act24; the Land Survey Act25; the
Lands Acquisition Act26; the Landlord and Tenant [Business Premises]
Act27; the Housing [Statutory and Improvement Areas] Act28; the Water
Act29; the Rent Act30; the Common Leasehold Schemes Act31; and the
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
21
22
23
24
25
26
27
28
29
30
31
4
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
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
32
33
34
5
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 favored 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 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 England38.
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; and
(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
35
Harchard and Ndulo, the law of evidence in zambia, cases and materials, Multimedia Publications,
Lusaka, 1985, p.1.
36
Church, W.L, “The Common Law And Zambia,” in law in zambia, Ndulo, M, ed, East African
Publishing
House Ltd, 1984. p1
37
38
See Section 3 of Chapter 2 of the Laws of Zambia.
39
Hayton, D, supra note 7 at p.2.
40
Ibid.
41
Ibid at p.3.
6
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.
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
42
Megarry and Wade, the law of real property, 4th ed, Sweet and Maxwell, London,2000, p.1.
43
Legal and Equitable interests in land are covered under Chapter 8 of this book.
44
Hayton, D. supra note 7 at p.61.
45
William, H. land law, 3rd Edition, Sweet and Maxwell, London,1994, p.10.
46
Ndulo, M. “The Changing Nature of Customary Marriage in Zambia,” in Law in Zambia, Ndulo (ed),
East African Publishing House Ltd, 1984, p.143.
7
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 recognized as applicable to the country by
virtue of section 16 of the Subordinate Courts Act,49 provided that such
customary law is not repugnant 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 recognize 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 helpful 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 Nine 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.
47
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
50
51
Section 12 of the Local Courts Act, see the case of Kaniki v Jairus (1967) ZR 71.
52
(1982) ZR 122.
8
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.
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.
53
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.
9
1.2.5.3 Judicial Precedent
Like most other countries formerly tied to England as colonies or

protectorates, Zambia is recognized 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 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 Text Book Writers
Text books may also be recognized 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 estate.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
55
Church, W.L, “The Common Law and Zambia”, law in Zambia, Ndulo,M, (ed), East African Publishing
House Ltd, 1984, at p.1.
56
Ibid.
57
(1977) ZR 75.
58
See generally Hayton, D. megarry’s manual of the law of real property, 6th ed, ELBS, London. pp 23-27.
10
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.
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 192563.
The outstanding feature of the English Land Law, and one which explains
many of it’s 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 Lords part protection and defense; on the man’s part protection
,service and reverence, the service including service in arms. This
personal service or relation is insuperably involved in a proprietory
59
William, H. land law, 3rd Edition, Sweet and Maxwell, London, 1994 p.5.
60
Ibid.
61
Hayton,D, megarry’s manual of the law of real property, 6th ed, ELBS p.24.
62
Okon, E. “Land Law as an Instrument of Social Change,” in ZAMBIA LAW JOURNAL, Volume 15,
1985 at p 46-51.
63
Ibid.
11
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 subordi-
nation. 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, sedeanties, spiritual tenure, free socage.
These services were considered to be rendered freely.
(b) Customary tenure:
Examples of this were gavel kind and borough English.
12
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 court the 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 1920's 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, conveyencing was simplified in particular by the reduction in number
of estates.
Laws 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
13
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
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
64
Ibid.
65
Hayton, D, supra note 58, p. 24.
66
William, H, land law, 3rd Ed, Sweet and Maxwell, London,1994, p 6.
67
Ibid.
68
Ibid at p 7.
14
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, 1st 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’.
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
69
Since repealed by the Lands Act of 1995 – The Land Conversion of Titles Act is covered in Chapter 12
of this book.
70
William, H, supra note 59 at p.7.
71
Ibid.
72
Ibid.
73
15
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.
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 recognised 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 including76:-
(a) A lease for a fixed term of certain duration e.g. a lease for 3 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
74
Hayton, D, supra note 7 p.30.
75
Ibid.
76
Ibid at pp. 30 and 31.
77
Ibid.
16
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 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 in possession were recognized 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 ended79.
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
78
Maudsley and Burn’s, land law: cases and materials, 5th Ed, Butterworths, 1986 London, p.120.
79
Dixon,M, supra note 2 at p. 99.
17
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 preceeding 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 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 don’t 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 leashold) 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
(i) b excerpted above.
80
This Act was enacted much later than the Lands and Deeds Registry Act which was promulgated as an
Ordinance in 1914.
18
1.5.1 Future Interests and 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
contigent 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 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
81
82
83
Ibid at p.100.
84
Ibid.
85
Ibid at p.101.
86
[1833] I Cl & Fin 372, 10 Bling 140.
19
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 24th 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 then 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 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 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
87
Hayton,D, supra note 61 at p.186.
88
William, H, supra note 59 at p.102- For a detailed exposition of the perpetuity rule please see Chapter 7
of Megary and Wade, supra note 42 and chapter 12 of Riddal, J.G supra note 4 .
20
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:-
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.
89
See Hansard no. 24 (B), Wednesday, 9th December 1970.
21
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 24th 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
22
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 favor 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
90
23
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 when 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.
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 [C.C.J.P],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
91
See generally Chapter 20 of this book dealing with the African Concept of land tenure.
92
Catholic Commission For Justice and Peace, "The Impact of the Lands Act 1995 on the livelihoods of the
poor and peasants in Zambia,” February, 2003. The author was part of the core research team.
24
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 paying ‘royalties’ to the senior Chief
unpalatable and unacceptable to him.
The C.C.J.P 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 exceepted 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.
93
Ibid.
94
Ibid.
95
ibid p31.
25
1.7 CASE LAW
Mukelebai v Widmaier Supreme Court Appeal No. 116 of 1995

[Unreported]
[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 (Ku Showelela) 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 infact 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
recognized 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 plaintiffs 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
26
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 plaintiffs 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 plaintiffs 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 plaintiffs land. To further discuss the technical and legal objection based on the Orders in Council in
Vacuo is decidedly otiose.
The appeal fails
27
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 state that 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 17th August 1911 (being
the commencement of the Northern Rhodesia Order in Council 1911),
customary law, judicial precedent and text books are also a source of land
law.
This chapter has, inter alia, tried to outline or give a summary 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 authorizing 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 1st
July 1975.
One consequence of the concept of the estate at common law was that the
law allowed various smaller and simultaneous estates to be carved out of
28
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
contigent 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 contigent
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. The Act generally 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
contigent 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.
29
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. In Zambia all land
is vested absolutely in the President and is held by him in perpetuity for
and on behalf of the people of Zambia1. 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 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
1
See Section 3 of the Lands Act of 1995, Chapter 184 of the Laws of Zambia.
2
Riddal,J.G, introduction to land law,4th Ed, London, Butterworths 1988 p.50.
3
Dias, R,W,M, jurisprudence, 5th ed, Butterworths, London, 1985, p.292.
4
Ibid at p.297.
5
F. Pollock (sir), jurisprudence and legal essays, selected and introduced by Goodhart, London, ST Martin
Press,1961
6
Fitzgerrad, Salmond on jurisprudence, 7th ed, London, Sweet and Maxwell, 1966, P. 277.
7
Walker, D.M the oxford companion to law, Caredon, press, Oxford, 1980, p 910 (on Ownership).
30
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 representatives8. 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 noise12.
(b) under the rule in Rylands vs Fletcher,13 e.g. where water escapes
2.3.2 Gold and Silver

At common law Gold and Silver belong to the crown.
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 page 551.
12
See National Hotels Development Corporation [T/A Fair View Hotel] v Motala [2002] ZR 39 (S.C).
the case is excerpted under the section dealing with case law.
13
[1868] LR HL 330.
31
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 neighboring 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
2.3.6 Air Space
At common law probably no action lay for trespass in respect of passage

through the airspace above the land in such circumstances as to involve
no interference with the reasonable use of it.21
In Lord Bernstein of Leigh Vs 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
14
Attorney General Vs. Trustees of British Museum [1903] 2 CH 598 at pp. 608- 611.
15
[1982] 1 ALLER 524.
16
Hayton, D, Supra note 10 at p 552.
17
Ibid.
18
Ibid.
19
Ibid.
20
See John Young and Co Vs. The Bankier Distillery Co. [ 1893] A.C 691.
21
Hayton,D, Supra note 10 p 563.
22
[1977] 2 All ER 902.
32
and enjoyment of the land and the structures on it and above that height
the owner had no greater rights in the airspace 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 airspace 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 Co23 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 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
23
[1884] 13 QBD 904.
24
Ibid at pp. 907-908.
33
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.
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 Zambia29. 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
25
Hayton, D, supra note 10 at p 550.
26
Ibid.
27
28
Ibid section 3.
29
Ibid section 3 (5).
30
34
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;
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 five 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;
31
32
Ibid section 3.
35
(b) the water in a spring which is situated wholly within the
boundaries of the land owned by 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
33
See sections 11 and 12 of the Act.
36
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 neighbor’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 Town and Country Planning legislation
in 1909 in England34. 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 in England 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 Eighteen 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:-
34
Hayton, D, supra note 10 at p. 553.
35
36
Megarry and Wade, the law of real property, 4th ed, London, Sweet and Maxwell, 2000, p. 1336.
37
38
37
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 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;
(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
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.”
38
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) Act42, 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.
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.
39
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 Act43 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
Fourteen of this Book.
The case excerpted 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 [S.C]
[The facts appear from the judgment of the Supreme Court delivered by Ngulube
C.J, 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
recognized to raise questions of fact, such as whether noise disturbance which deprives a neighbour of rest or sleep
43
40
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 organized 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’CALLAGHAN44, 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 recognized and protected. 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.
44
(1940) AC 880.
41
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.
42
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
contexts1, including; whether it passes to a purchaser on the sale of land2,
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
remainderman4, whether it passes on death as realty or personalty5.
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.
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:
(a) the degree of annexation; and

(b) the purpose of annexation.
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] 2KB 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.
43
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 shown6. 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
enjoyment.10 In Vaudeville Electric Cinema Co. Ltd. v Muriset11, 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
grounds12
6
Hayton,D, megarry’s manual of the law of real property 6 th 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 Vs Eastwood [1851] 6 ExCh 295 at 312.
10
Leigh v Taylor [1902] A C 157 -Tapestries affixed by nails and tacks were not fixtures.
11
[1923] 2 CH 74.
12
Re Whaley [1908] 1 Ch 615.
44
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 there after. These include:
(i) 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.
(ii) 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 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
13
[1940] 1 ALL ER 260.
14
15
Monti V Barnes [1901] I QB 205.
16
Reynolds V Ashby and Son [1904] AC 466.
17
Philips V Lamdin [1949] 1 ALL ER 770.
45
3.4 Case Law
(a) Fixtures – Tests for determining whether Chattel has become a fixture.
Leigh and Others Vs Taylor and Others [1902] AC 154 [HL]
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 emphasized 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, 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 land lord 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 Levtett, 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-
46
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 infact
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 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 [HC]
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.
47
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
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 Taylor19. 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
18
[1953] 2 ALL ER 1061 at p. 1063.
19
[1902] AC 157.
48
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 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 statute 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
49
of 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.
50
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 the with 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
contexts 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.
51
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.
Corparcenary and tenancy by entities are old forms of co-ownership and will not
be discussed here.
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 another1.
Although as between themselves joint tenants have separate rights, against
everyone else they are in a position of a single owner2. 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). 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 transfer3.
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
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.
3
52
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 land4.
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 land5.
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 duration6. 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 owned7.
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 conveyance8.
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 title9.
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.
4
Bull v Bull [1955] QB 234.
5
Dixon, M, supra note 1 at P.71.
6
Howarth, W, land law, London,Sweet and Maxwell, 1994, p.54
7
Ibid.
8
Hayton,D, supra note 2 p.301.
9
Ibid.
53
(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
essential11. 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 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 Act16provides 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
10
Ibid.
11
Ibid at p.302.
12
Riddal, J.G, introduction to land law, 4th ed,London. Butterworths, 1998, p.146.
13
Ibid.
14
Ibid at p.147.
15
Ibid.
16
Chapter 185 0f the Laws of Zambia.
54
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.
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 – SCZ APPEAL No. 104 OF 1999 (Unreported)
[ The Facts of the case appear from the Judgment of the Supreme Court delivered by Muzyamba J.S]
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 Ist 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 Ist 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…
55
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 :-
(i) 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 2 002,
being rentals due and payable in respect of the Plaintiffs share in
Stand No. 3515/F, Rhodes Park, Lusaka.
(ii) Restoration of S/D F of Stand No. 3515, Lusaka to the original
position of two flats.
(iii) The flat in front and facing the Great East Road.
(iv) Declaration Order that the Defendant is trespassing on the Plaintiffs
portion of S/D of Stand No. 3515.
(v) 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 Co owner.
Popatal v Gauff And Another – 2002/HPC/0486- HC [Unreported]
[ 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 Plaintiffs 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 Plaintiffs 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
56
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 PW 1 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,, PWI 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.
57
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 2 nd 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 DWI. 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. DWI 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, DWI 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 Plaintiffs 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 2nd 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 Plaintiffs Bundle of Documents was informing the
Defendant that the Certificate of Title in the Plaintiffs 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 Plaintiffs Supplementary Bundle of
Documents was a Certificate of Title in the name of Bhaga Amrat Naran and Popatal Balvantlal issued on 6th
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 6th March and on 22d November 2002, the Plaintiff evicted the
58
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 12th October and 2 nd 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 Plaintiffs interest in the property.
In fact, DWI agreed being aware of the correspondence from the Plaintiff's Advocates advising the Defendant about the
Plaintiffs 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 Plaintiffs 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.
59
In the case of George Andries Johannes White Vs. Ronald Westerman17 , 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 Plaintiffs
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
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.
17
(1983) Z.R. 135.
18
(1998) (S.C) ZR 23.
60
On the Defendant's claim that it was only after the Supreme Court Judgment that the Plaintiffs 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
Plaintiffs 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 Plaintiffs 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.
61
4.6 SUMMARY OF CHAPTER FOUR.
This Chapter has examined and considered the nature of Co- ownership
of property. Co- ownership or Concurrent interests in 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 recognize 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.
62
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 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 Chandler5, a lease for the duration of the Second World War
1
Riddal, J,G, Introduction to land law, 4th edition, London, Butterworths 1988, p. 255.
2
Ibid.
3
Dixon, M, land law, London, Cavendish Publishing Limited, 1994, p.122.
4
Ibid.
5
[1944] KB 368.
63
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 license, which is a personal revocable interest.7 If the grantor remains in general
control of the demised premises, a license is likely to be inferred. For example, in
Appah v Parn Cliffe Investment Limited8, 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, 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 sufficient9. 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 bonafide
relationships between the parties. Examples include situations where occupation
is on charity, friendship or family arrangements.10
6
(1967) ZR 109 –the case is excerpted under Chapter 17 of this book dealing with the Lands and Deeds
Registry Act.
7
Dixon,M, supra note 3 at page 119.
8
[1964] 1 WLR 1064.
9
Dixon,M,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.
64
5.2 Types of Tenancies
Tenancies may be categorized 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 lease11 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 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 dissent14. The
tenant is liable to pay compensation for occupying and using the land15. 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 assent16. A
tenancy at sufferance will be converted into a tenancy at will if the landlord
subsequently assents to the tenant’s occupation17.
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
11
Megarry and Wade, the law of real property, 6th ed. London, Sweet and Maxwell, 2000, p. 793.
12
Ibid.
13
Ibid.
14
Remon v City of London Real Property Co. Limited [1921] 1KB at page 49 especially at page 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 J.S, in G.F Construction [1976] limited v Rudnap (z) and
Unitechan Limited (1999) ZR 134 at p. 137 .
16
Megarry and Wade, supra note 11 at p. 344.
17
Ibid at p. 795.
18
Howarth, W, land law, 3rd Edition, London, Sweet and Maxwell, 1994, p.32.
65
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. 3 months, 1 year, 99
years, etc.
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 land22. 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
19
Dixon,M, supra note 3 at p.123.
20
Howarth, W, Supra note 18 at p. 30.
21
Ibid.
22
See Owen v Gadd [1965] 2 QB 99. See also Hudson v Cripps [1896] 1 CH 265 at p. 268.
23
Supra note 11 at p.360.
24
Supra note 22.
25
[1963] 1 QB 499.
26
[1953] 1 W.L.R 672.
66
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 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 Co30, 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 stair cases, then he is under obligation to keep them in state of repair33.
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 and
4. Obligation not to commit waste.35
27
Riddal, J,G, introduction to land law, London, Butterworths, 1988 at page 276.
28
Howarth, W, supra note 18 at p. 31.
29
Hayton,D, supra note 11 at p. 360.
30
[1894] 2 CH 437.
31
Hammer v Jumbi [Nigeria] Tin Areas Limited [ 1921] 1 CH 200.
32
Howarth. W, supra note 18.
33
See Liverpool C.C v Irwin 1977 A.C 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
Hayton,D, megary’s manual of the law of real property, 6th ed. London, ELBS.
35
Ibid at p.363.
67
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 landlords 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 vs
Sorrel37, 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
licensee40. 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 the Licensee has no claim in damages or
specific performance should this happen41.
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
36
Dixon, M, supra note 3 at p. 153.
37
[1673] Vaugh 300.
38
39
Ibid at p.199.
40
Ibid.
41
Ibid.
68
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
Yarmount 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 honor the contract.
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 installments 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 18, 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.
42
Supra note 18 at page 88
43
[1947] 2 ALL.ER 331.
44
[1980] 1 ALL.ER 839.
45
[1915] 1 KB 1.
46
[1916] 2 A.C 54.
47
[1952] 1 ALL .ER 149.
48
[1972] 2 ALL .ER 70.
49
[1975] 3 ALL .ER 776.
69
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 acquiescences to the use of land by
another he may be estopped from denying that person’s right to use the land.52
In Willmont 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 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 behavior of the promisor.55
50
Burn and Maudsley’s, land law, cases and materials, 5th edition, London, Butterworths, 1986, p.510.
51
Ibid.
52
supra note 20 at page 89.
53
[1880] 15 CH 96.
54
Ibid at p. 105.
55
Crabb v Arun District Council [1975] 3 ALL.ER 865.
70
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
5.7 CASE LAW
(a) Essentials of a Lease
BOBAT v KAPINDULA (1974) Z.R. 235 (S.C.)
[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 Pratt58 , Lord Denning M.R said:
"It is settled beyond question that, in order for there to be a valid agreement for a lease, the essentials are
hat 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.
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.
56
James Jones and Son Limited v Earl of Tankerville [1909] 2 Ch 440.
57
Ibid.
58
[1965] 2 ALL ER 786.
71
(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 license. His Lordship summarised the distinction
between a lease and a licence thus:-
(i) 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;
(ii) 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;
(iii) An exclusive right to do something on a property (as opposed to
exclusive possession thereof) is merely a licence;
(iv) 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;
(v) 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 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 Mayors
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 Council60, 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
59 (1967) ZR 115.
60
[1904] 1 KB 713.
72
grant of any estate or interest in the land, and I would refer, in particular, to the judgment of 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 Is. 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 [HL]
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
73
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 7th 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 many 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
74
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
75
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 the better to 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-
76
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
77
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
78
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 L.J., 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.’
79
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 … ’
80
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.
81
(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) Z.R 144 [SC]
[The facts of the case appear from the Judgment of the Supreme Court delivered by GARDNER,J.S]
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
P O Box 30894
LUSAKA
6th November, 1992
Curray Ltd.,
P O 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
82
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 had 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 Mwanga 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 Mwanga 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.
83
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) I. T. L. R. 1389 p. 1389, Denning L. J. said:
"In all cases were an occupier has been held to be a licencee there has been something in the
circumstances, such as a family arrangement, an act or 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
desparate 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….
84
(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 & B.P. Zambia Limited v Conidaris And Others,61 the appellant had on
6th 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 the 6th 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 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 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 :-
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) (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.
61
(1975) Z.R 174 (S.C).
85
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 invites 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
86
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
87
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 Level was not however able to suggest how this submission could be
reconciled with the words in clause 4 " or in part or parts f 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
88
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 defendants occupation of the land on the farm until
1967 arose out of his contract of employment with the owner of the land and
thereafter the 1st defendant was allowed to stay on the farm until it was sold. The
second defendant entered the farm in 1971 after the 1st 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
62
(1977) Z.R. 138 (H.C.)
89
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 L J 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 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 Lane65. If a servant is given a personal
privilege o 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 Bryson66."
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 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
63 [1952] 2 TLR 659.

64 [1949] 65 TLR 138.
65 [1952] 1 TLR 1037.
66 [1952] 1 TLR 1386.
90
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
"... 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 Leadbetter69. 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 Palmer70; Thompson v Park71. 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
Ltd 72per Lord Greene, M.R (1947) 2 All E.R. 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, M.R 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 M.R observed (at p.75 at c to g) :
"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
Estates 74and 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
67
[1975] LR 10 QB 422.
68
[1952] 1 ALL ER 149.
69
[1845] 13 M & W 838.
70
[ 1942] 2 All E.R. 674 at p.677.
71
[1944] 2 All E.R. 477 at a p. 479.
72
[1946] 1 All E.R. 678 at p. 680:
73
[1972] 2 ALL ER.
74
[1899] 1 Ch 324.
75
[1952] 1 All E.R. 149 at 155.
76
[1807] 8 East 165.
91
equity would grant an injunction to restrain the landlord from enforcing his rights at law [as in Browne v
Warner77. The courts of equity would give the agreement a construction, which - Lord Eldon L.C. 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 Warner78 . 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 M.R 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, 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 M.R 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 bar 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.
77
[1808] 14 ves. 409].
78
Ibid.
79
[1903] 1 K.B. 577.
92
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
over 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 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 stair-cases 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 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.
(ii) Liability to a tenant must relate to the landlord's obligation, not to the
public but to the tenant himself.
(iii) 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.
80 (1988 - 1989) Z.R. 181 (S.C.)
93
(iv) 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, D.C.J; 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
94
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 another81, 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 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
81
[1976] 2 ALL. ER 39.
95
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.
96
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 another82: Green v Fibre Glass Limited83, and similar cases. There can be no doubt in the case at hand
that the landlords acted reasonably in entrusting the task of maintaining 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 appeal is allowed; The judgment
below is reversed and judgment entered for the landlord…
82
[1941] 3 All ER 156.
83
[1958] 2 QB 245.
84
[1916] KB 308.
97
In Liverpool City Council v Irwin and Another85, whose decision the
Supreme Court for Zambia in the Hickey Studios Ltd case, followed a
local Corporation was the owner of a tower block which contained some
70 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:
(a) continual failure of the lifts,
(b) lack of proper lighting on the stairs and
(c) 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:-
(a) that the Corporation was under an implied covenant to keep the
common parts in repair and properly lighted,
(b) 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 (c)
that accordingly the appellants were entitled to £10 damages on their
counterclaim.
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
85
(1976) 2 All ER 39.
98
block in repair and the lights in working order, and that the Corporation
was in breach of the obligation.
It was held, inter alia, 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.
99
5.8 SUMMARY OF CHAPTER FIVE.
This chapter has examined and considered the law relating to 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 there are not proprietary in
nature. As Vaughan C.J 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.
100
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 Act2 has somewhat altered the common law nature of a mortgage as
defined by Lord Lindley in Santley v Wilde. Section 65 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 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
1
[1899] CH at P.474.
2
3
Dixon, M, land law, London, Cavendish Publishing Limited, 1994, p.217.
101
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
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
4
Ibid.
5
Leigh, R, coote’s treatise on the law of mortgages, 9th ed, vol 1, London, Stevens and Sons Ltd,
1977. p86.
6
3rd Edn, Butterworth and Co. Publishers Vol. 27, 1955, p.168, Para 263.
102
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 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
7
Since the decision in Russel v. Russel [1783] 1 Bro. C.C 269.
8
Hayton, D, megarry’s manual of the law of real property, 6th ed, London, ELBS, 1982 p.468-469.
9
Ibid.
10
Ibid, at p.468.
11
Dixon, M, supra note 3 p. 225
12
Hayton, D,supra note 8 page 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.
103
should lose his property because he was late in repaying his loan13. 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
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 exist as soon as the mortgage is made.18 The equitable right to
redeem is one of the adjuncts of the equity of redemption19.
6.3.4 Equitable Principles Applicable to Mortgage Transactions.
In G and C Kreglinger and New Patagonia Meat and Cold Storage

Company, Limited20, Lord Parker attempted to sum up the equitable principles
applicable to mortgage transactions. His Lordships 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.
13
Ibid.
14
Ibid.
15
1892] A.C 1, at P.18.
16
Re Wells [1933] CH 29 at P. 52.
17
Hayton, D. supra note 8, at page 463.
18
G and C Kreglinger and New Patagonia Meat and Cold Storage Company, Limited [1913] AC 25.
19
Dixon, M. supra note 3.
20
[1913] AC 25 at page 53.
104
It is a fundamental principle of the law of mortgages that ‘once a mortgage,
always a mortgage’ even if this contravenes the 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% within 12 months; the loan to become due and payable
with interest at 30 days’ notice on either side. Within 12 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 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
21
Dixon, M, supra note 3 at page 218.
22
See Salt V. Marquis of Northhampton, supra note 15.
23
Dixon, M, supra note 3 at p.227.
24
[1904] AC 323.
25
Ibid, at page 329.
26
Reeve v. Lisle [1902] AC 461.
105
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 40 years was valid and binding, one of the most
important reasons being that the parties were large commercial entities who 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 26
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 and New Patagonia Meat and Cold Storage Company,
Limited, the House of Lords held that:
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.
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.
32
[1898] 2 CH 307.
33
[1913] AC 25.
34
See Generally Hayton, D,supra note 8 pp. 472-485.
106
The learned authors of Megarry’s Manual of the Law of 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 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.
35
Ibid at page 484.
36
Ibid.
107
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 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 default43. A mortgagee will not normally exercise his right
37
See, for instance, the case of Investrust Merchant Bank v. Ebrahim Yousuf, SCZ/4/2004
(unreported),excerpted under the section dealing with case law.
38
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
Hayton, D, supra, note 38 at page 473.
43
Ibid, at page 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.
108
until some default has occurred which will enable him to exercise his power.
Once he takes possession, a mortgagee is liable to account (unless 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 received44.
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 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
44
Ibid, at page 479.
45
Ibid., at page 473.
46
Ibid.
47
109
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 M.R. 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 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 Wells48 [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
48
1933] CH 29 at Page 52.
110
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 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 Limited 49

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 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 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
49
[1914] AC 25.
50
1 Vern. 33;2 Ch, cas,147.
111
the rule, in cases where the transaction includes a family arrangement, as well as a mortgage, has been recognized 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 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 judgement 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 Vs. 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 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 cotemporaneous 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…’
51
[1898] 2 CH 307.
52
[1705] 2 Vern. 520.
112
(c) 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 (Hc)
In Magic Carpet Travel and Tours Limited Vs 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. 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.
113
(d) 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 (SC)
[The facts of the case appear from the judgment of the Supreme Court delivered by Ngulube C.J, 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 K 500 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 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
114
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 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 infact 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 K 1.6 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
115
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, 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 Kitch53, 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 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 0rder 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 installments. 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 K 500
million to be paid within seven months. If the whole of the amount plus interest including the balance not
infact 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
53
[1996] 1 WLR. 1316, [CA].
116
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 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 K8O 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.
(e) 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 Yvonne Phoebe Jedburgh
Yusuf (1998) ZR 315.
[ The facts appear in the judgment of the Supreme Court which was delivered by MUZYAMBA J.S.].
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 second defendant is a director of the first defendant. The first
defendant obtained a loan of K368,660,07500 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 27th 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$5 16,504-58).
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.”
117
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 realized 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 James Daka v Shantilah Bhulabhai 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 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
54
[1982] 3 ALL. ER 938.
55
[1971] 1 CHD 949.
56
(1995 – 1997) ZR.108.
118
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 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.
57
[1882] 20 Ch. D. 220.
119
(f) 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…
(g) 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 -
Investrust Merchant Bank Limited And Simbeye Enterprises V Ebrahim Yousuf – [Scz No. 4 Of 2004]
Appeal No. 85a/2002 [Unreported]
[The facts appear from the Judgment of the Supreme Court delivered 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.
58
Supreme Court Appeal No. 50 of 2001 [unreported].
120
The first letter of demand is dated 9th November 1998. It reads:
“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. 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
121
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 our
originating summons for the same court to determine preliminary issues and questions. These are:
.
1. Whether a mortgagee, in exercising the power or 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 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 second 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
122
the second 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 exercisising 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 realize 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 aspecific
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 K12 1,955,000.00 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 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
59
(1995 – 1997) ZR 108.
123
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 African Eagle,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 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 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
60
(1998) ZR 315.
61
[1999] ZR 75.
124
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 legitimize 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 mat 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) 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. “
125
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 case. Our understanding is that, by such a provision, the 1st
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 authorize 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 realize 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.
126
6.5 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 it’s 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 colourable sale may be set aside by court. 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.
127
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 land4. 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 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
1
William,H. Land Law, 3rd Edition, London, Sweet and Maxwell, 1994, p.64.
2
Duke of Sutherland v Heathcote [1892] 1 CH 475 at Page 484.
3
Lowe v J.W. Ashmore Limited [1971] Ch 545 at 557.
4
Maudsley and Burn’s Land Law, Cases and Materials, 5th edition, London, Butterworths, 1986 P.561.
128
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 neighbor’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.
An easement cannot exist unless and until there is both a dominant and servient
tenement in separate ownership. In London and Blentheim 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
5
Ibid 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.
9
[1993] ALL E.R 307.
129
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 L.J 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.
The learned authors of Megarry’s Manual of the Law of 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.
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 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.
10
Hayton, D, supra note 8 at 397.
11
[1888] 22 OBD 224 at 236.
12
Hayton, D,supra note 8 at 397.
13
Ibid at page 398.
14
Ibid at page 396.
130
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 Hills 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.
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 privacy 19
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, e.t.c, 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 recognized categories
15
(1862) 2H 8C 121.
16
Hayton, D,supra note 8 at 397.
17
Dixon, M, supra note 7 at 157.
18
Hayton, D, supra note 8 at pages 398 – 399.
19
Ibid.
20
Ibid.
21
Browne v Flower [1911] I Ch 219.
131
(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 recognized. 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 recognize an easement which gives the dominant

tenement owner exclusive occupancy of the servient tenement24. Further it is
unlikely that a Court will recognize 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 Easments 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
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
22
Miller v Emcer products [1956] ch 304.
23
Wright v Mcadam [1949] 2KB 744.
24
Copeland v Greenhalf [1952] CH 488.
25
Philips v Pears [1965] 1 QB 76.
26
Ibid.
27
See generally, Hayton, D, supra note 8 at pp. 408-428.
28
William, H, supra note 1 at P.70.
132
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 allows31. User can
be by successive owners of the dominant tenement.
(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 leased32. 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 Charles 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 20 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.
29
[1902] 2Ch. 557.
30
[1918] 1Ch. 307.
31
32
Ibid.
33
Hayton, D. supra note 8 at 416.
34
William, H. supra note 1 at p.71.
35
Ibid.
36
37
[1881] 6 App Cas 740.
133
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 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 claimed39. 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.41The 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 20 years and it shall not be defeated
by showing that the user began at any time prior to the 20 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 20 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 must be recorded in a certificate or provisional certificate of Title. The
section provides that:
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
38
Halsbury’s Statutes, 2nd Edition, Volume, 6, p. 667.
39
Ibid.
40
Supra note 38 at Page 814.
41
Ibid. at Page 699.
42
Supra note 7 at 427.
134
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 [CA]
[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
135
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
case is excerpted below.
[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 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
43
[1955] 3 ALL ER 667.
136
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; ie, 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
137
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 tenament, 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, ie, 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
138
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
139
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.
140
(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 Vs 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 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 servant 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 10th 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...
44
1996/HP/2727/ (H/C unreported).
141
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 Plaintiffs
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 plaintiffs 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 10th October, 1995 after a
meeting The defendants certificate of title shows no change of becons 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 Plaintiffs 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 defendants 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 defendants’ farm. After the
meeting it was agreed that the plaintiff uses the proposed boundary road it is ten meters wide. He was supposed to
be compensated equal land by the plaintiff. The plaintiff was supposed to pay K 30,000 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 defendants 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 defendants 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 defendants’
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 development 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….
142
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’ 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 it so who the owners of these farm 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 Plaintiffs 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 can not 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 can not 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 no where. 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 trough 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 Plaintiffs 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 dominent tenements; 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.
143
(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 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 ,inter alia, 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.
45
(1978) ZR 208 (HC).
144
7.9 SUMMARY OF CHAPTER SEVEN.
Servitudes involve the enjoyment of rights over another persons 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 posses 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 recognizable 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
recognized. 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 utilize 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 A.C 54).
145
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 contribution1 . 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 become known as equitable rights.
What had started out as different procedure for administration of justice
eventually developed into two sets of substantive legal principles; the
common law and equity2.
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 Appeal3. All the courts are empowered to apply rules
of law and rules of equity, but the distinction still remains in modern law.
1
Horwath,W, land law, London, Sweet and Maxwell, 1994. p.10.
2
Dixon, M, land law, London: Cavendish Publishing Limited, 1994, P.7.
3
Hayton, D, megarry’s manual of the law of real property, 6th ed. London: ELBS, 1982, p.6.
146
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 Vs 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 bonafide
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, summarises the distinction between the two rights to be
thus:-
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
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
supra note 3 at Page 8.
7
1996/HP/2727. The is case excerpted under Chapter 7 dealing with servitudes.
8
Hayton, D, supra note 3 at page 63.
147
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 bonafide 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 bonafide purchaser for
value of the legal estate without notice. The doctrine of notice is
fundamental to property law.
In Pilcher Vs Rawlins11 James L.J 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. Bonafide-
The purchaser must act in good faith, i.e there must be no fraud or
sharp practices.
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
9
Megarry and Wade, the law of real property, 6th ed. London, Sweet and Maxwell, 2000, P.99.
10
Ibid.
11
[1872] 7 CH 257.
12
Ibid at p.269.
13
Wilkes v Spooner [1911] 2 KB 473 at 486.
14
Hayton,D, megarry’s manual of the law of real property, 6th ed. London, ELBS, 1982,page 64.
15
Ibid at page 65.
148
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 rumors.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.19The
purchaser should inspect the land and make inquires as to
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
16
Ibid.
17
Lloyd v Banks [1868] 3 CH 488.
18
Supra note 1 at page 13.
19
Bailey v Barnes [1894] 1 CH 25 at 35.
20
Hunt v Luck [1902] 1 CH 426.
21
Burn,B.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.
149
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 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.
23
150
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 bonafide 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 tenants’ 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 25th 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
24
(1998) ZR 17 (SC).
151
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, D.C.J.: 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.
…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
Waddel,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.
25
[No. 2 1997] Ch. D. P.106.
152
He then referred us to Halsbury's Laws of England para 1322 on page 887 Vol. 16,
4th Edition where the learned author said:
"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 bonafide purchaser for value
without notice. We adopt the opinion of the learned author of Halsbury's and the enunciation in Tito v
Waddel; 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 [unreported] (S.C)
[The facts of this case appear from the judgment of the Supreme Court delivered by Chibesakunda J. S]
.
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 Ist
respondent now who were the Ist 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;
26
[1902] 1 Ch. D. P.428
153
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 Ist 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 2 1st 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 Ist 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 1st 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
154
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 Hinton27, 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 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 Kapinga28 , 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.
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 Kapinga29, adopting the English
case of Hunt Vs Luck30, 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
27
[1899] 2 Ch 264.
28
(1998) ZR. 17.
29
(1998) ZR. 17.
30
[1902] Ch. D. 428.
155
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 [unreported]
[The facts of the case appear from the judgment of the Supreme Court delivered by
Chitengi, J. S]
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.
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 galvanized 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
156
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 preceeded 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 Plaintiffs 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.
31
(1998) ZR. 17.
157
The Third Party went to the property and found it locked and being guarded. The Third Party also talked about
the lease 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.
32
Supreme Court Judgment No. 6 of 1996.
33
(1999) ZR 61.
158
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. Ever Green 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 exist.
An equitable right binds every transferee of land except equity’s darling –
i.e 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 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. This again has been exemplified and/or
illustrated by the cases excerpted in this chapter.
159
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
enforced3.
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 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.
1
Chitty on Contracts, Vol 1, General principles, London: Sweet and Maxwell, 1999, Para. 4-001 at p.261.
2
Ibid.
3
Per Lord Simon of Glaisdale in Steadman Vs Steadman [1974] 2 ALL ER 977 at PP. 995-996.
160
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 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 enforced5. 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 sales6.
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 requirements7.
On the content of a ‘note’ or ‘memorandum’, the Supreme Court in the

case of Mijoni Vs. 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
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
Hayton, D, megarry’s manual of the law of real property 6th ed, London, ELBS, 1982, p.137.
7
Cheshire Fifoot and Furmston’s, law of contract, 11th Ed, Oxford, Butterworths, 1986, p.201.
8
Appeal No. 10 of 1986 (unreported).
161
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 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
9
10
Re Hoyle [1893] 1 CH 84 at 99 per Bowen L.J.
11
(1972) ZR 228.
162
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 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
12
(1975) ZR 152.
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.
163
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 Vs.
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:-
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
16
[1974] 2 ALL. ER 977.
164
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 Vs 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 vendors consent;21
17
[1974] 2 ALL ER 977 at pages 995-996.
18
Riddal, J.G, introduction to land law, London: Butterworths, 4th edition, 1988, p. 241.
19
Daniels v Trefusis [1914] 1 Ch 788.
20
Rawlinson v Ames [1925] Ch 96.
165
(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
(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
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 ALLER.
25
Clerks v Wright [1737] 1 ALL ER 12 at 13.
26
Maddison v Alderson [1883] 8 App. Case 467.
27
New Hart Builders v Brindley [1975] 1 ALL. ER 1007.
28
Supreme Court Judgment No 12 of 1992[unreported].
29
30
Sutherland V Briggs [1841] 1 Hare 26 at p.32.
166
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.”
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 1989.31
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.
MWENYA AND ANOTHER V KAPINGA (1998) ZR 17 (S.C)
[The facts are summarized under the section dealing with case law in the preceding chapter]
BWEUPE, D.C.J.: 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;
31
See Megarry and Wade “the law of real property”,4th ed, Stevens and Sons Limited, London, 2000 p.650-
652.
167
(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.32
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 preliminary agreement and/or subject to
32
[1965] 2 ALL ER 105.
168
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
Zambia33 and concluded that in the absence of completion Statement by the 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
respondents 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 Walting 34 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 Waddel (No. 2)35 where it was stated:
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.
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
33
34
[1947] 2 ALL ER 641 at 641.
35
[1977] Ch. D.P. 106 at p.322.
169
to perform part of the contract 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 France36 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.
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 25th August, 1992 and on 26th 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.
36
[1946] 2 ALL. ER p.83.
170
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.
In the case of Mijoni v Zambia Publishing Company Limited37 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 of 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 Fitfoot'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 latters 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 38 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. The law
concerning specific performance of contracts 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 adquately 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,39 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:
37
Appeal No. 10/1986.
38
(1987) ZR 23.
39
(1985) 2 Ch. D.P. 744.
171
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 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 a 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 Waddel (No. 2 1997) Ch. D.P. 106 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 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. 40 The Court finally confirmed the learned
trial Judge’s decision ordering the specific performance of the Contract of
Sale.
In Match Corporation Limited V Choolwe and Another,41 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 relationships 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
40
This aspect of notice is covered under Chapter 8 where this case is also excerpted in relation to the
doctrine of Notice.
41
Appeal No. 75 0f 2002 [unreported- the case is also excerpted under chapter eight in relation to the
doctrine
of notice.]
172
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) Z.R. 336 [H.C]
[The facts of the case appear from the judgment 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
173
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,42 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
42
133 E.R 1338.
174
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
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 diners
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 25th 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 Stocks43, 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
contemplated signature by both parties would not be treated as conclusive, or, indeed, as
43
[1951] 1 ALLER 1043.
175
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 Another44 [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
44
[1892] 19 B.T 93.
176
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 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. [H.L]
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 2 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
177
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 2 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 30TH 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
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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 not withstanding 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 Alderson45 (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 … ’
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
45
(1883) 8 App Cas 467 at 478, 479.
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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 part 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
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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
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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
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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 SCZ/12/1992 (unreported) (SC)
[The factsof the case appear from the judgment of the Supreme Court which was delivered by
Chaila J.S]
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 14th 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 12th
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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 vs Smith (1946) 2 All E.R. 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
184
(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,46 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 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
(T.P.) 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 December 4, 1944.The respondent obtained a
key of the house, and on December 11, 1944, entered into possession of the premises. On December 20, 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:
46
(1977) ZR 336.
185
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 legalized 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
186
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 realized 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 [S.C] Unreported
[The facts the case appear from the Judgment of the Supreme Court delivered by Ngulube C.J, 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 un
exhausted 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 plaintiffs
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.
187
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 plaintiffs 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- SNOOK47 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.48 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 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.
47
[1938] 1 All ER 411.
48
[1947] KB 130.
188
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
authorized. 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 realized 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.)
189
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 Fraud, 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 deed2.
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 contract4.
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
heraditament would be void at law unless made by deed. The Lord
Chancellor, Lord 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
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 ER Vol. 44 at page 1108.
4
Riddall, J. G, introduction to land law, 4th Ed, London, Butterworths, 1988, p.251.
164
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 effect5.
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 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.
5
supra note 3 at page 1111.
165
The learned Authors of Megarry’s Manual of the Law of 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 lease6.
10.2 Effect of Walsh Vs 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 Miller8, Stamp L.J 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 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.
6
Ibid at page 337.
7
Hina Furnishing Limited V Mwaiseni Properties Limited (1983) Z.R 40 – the case is excerpted under
the section dealing with case law.
8
[1973] 2 ALL. ER at 377.
166
10.3 CASE LAW
(a) Executory agreement for a lease is as good as a lease where there 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, M.R. 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
exercised 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:-
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
9
[1974] 1 ALL.ER 17.
167
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 e.g obtaining Presidential consent or who is in
breach of term of the agreement.
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 15th 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.
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
10
Ibid at pages 24-25.
11
(1983) ZR 40 (H.C).
168
premises. Equally the plaintiff on his part paid rent for some months (see William Jacks and Company (Zambia)
Limited (1967) Z.R. 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 page 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, M.R.;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 Edn.) 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,
169
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 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 be 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 Ravalia12, the High Court of Northern Rhodesia (Woodman.J) was

faced with a situation (somewhat similar to Walsh Vs. 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 purchase contained
under the unregistered lease. According to his Lordship the agreement could
still take effect in equity. The two cases are excerpted below.
12
[LRNR] (1949-54) Vol. p 345
13
Chapter 185 of the Laws of Zambia.- The Lands and Deeds Regisrty Act is covered under chapter 17 of
this book
14
[1949-54] Vol. P. 759.
170
(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 E.R
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 file 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 statue 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 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…
171
(d) O. H. SUNDI v A.N. RAVALIA N.R.L.R [1949-54] Vol. P. 345
[The facts of the case appear from the Judgment of Mr. Justice Woodman.J]
This is an appeal by 0. 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 the1st February 1948 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 24th 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.
172
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 top
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 agreemet 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 crate 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;
173
Provided also that 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.”
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 0.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 oases under other Acts in which it was held that although the Act in terms madc 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
ease 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 in 200 years old and in more
modern cases it has been held that it would be dangerous to engraft an equitable exception, James L J,in Edwards v
Edwards, quoted with approval Building Co ,in re Tacon v. The company.
174
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.
Ms. 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 the 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
175
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? 1 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 Zambia15, 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.
176
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.
177
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 African
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 Charter2. Under the
Charter the Company was, inter alia, entrusted with the administration of
the two territories. The Company was authorized 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 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
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 Limited, 1980.
2
Royal Charter of incorporation of the British South Africa Company, 29th October,1889.
3
Ruler from 1886-1916.
176
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, e,t,c.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 minerals5.
11.3 British South Africa Company’s Claims to Ownership Of Land
The 1889 Orders in Council [Northwestern and Northeastern 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
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 vs African Lakes
Corporation (A.L.C) and Pettit Vs African Lakes Corporation, otherwise
known as the Kombe cases.7 The central issue in both cases was the
4
Muna Ndulo, mining rights in zambia, Kenneth Kaunda Foundation, Lusaka, 1987, p.25
5
Ibid at pp 31-36.
6
Ibid, see Chapter 3 entitled “ Challenges to the British South Africa Company Claims.” Pages 37-76, See
also Mvunga,M,P, supra note 1 at p 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.
7
See Clement Ng’ongola, “The Political Economy of Land in Nyasaland” in Africa Social Research
Journal, Number 36, University of Zambia Institute For African Studies, pages 498-499.
177
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 A.L.C. 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.
Re SOUTHERN RHODESIA [1919] A.C 211 – [Privy Council]
LORD SUMNER [at page 229] …on April 17, 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.
8
The Privy Council was the highest apellate Court for the Protectorates and colonies under the British
Empire.
9
[1919] A.C 211.
178
“(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 July 16, 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 April 17,
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 traveler, 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.
179
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 recognized 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
180
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 April 17, 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
181
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 Vs 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 an act of
state unchallenged in any British court. The case is excerpted below.
SOBHUZA II Vs MILLER AND OTHERS [1926] 2 A.C 518 – [PC]
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 July 26,
1889. Under this concession the grantees bound themselves to respect all prior rights, and, further, in no way
to interfere with the rights 0f 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 December 17, 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 September 19,
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
November 2, 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 recognized later on by Art 5 of the Order in Council made on June
25, 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 November 2, 1907, the ownership of the land had passed to the Crown, and that
10
[1926] 2 AC 516.
182
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 November 2, 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 March 16, 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
183
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 B.S.A Company, the Crown relieved the Company of
the administration of Northern Rhodesia as from 1st 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.
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
See the Report of the Commission of Inquiry into land Matters in the Southern Province, 1982,
Government Printers, Lusaka.
12
Meek, C,K, land law and custom in the colonies, Frank Cass and Co. Ltd, London, 1966.p.120 .
184
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 5 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 natives
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
13
Ibid at page 121.
14
Ibid.
185
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 5 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 law16. 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 Reserves17.
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 anticipated18, 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 land19. The
15
Ibid.
16
Mvunga,M.P. “The Colonial Foundations of Zambia’s Land Tenure System, 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.
18
According to Dr.Meek, the European population in 1938 was 13,000. – Supra note 12 at p.121.
19
Ibid.
186
Government’s new policy which was announced in July 1942 may be
summarized as follows:-
(a) Crownland was to be available for non native settlement and for
minning 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 mineralized areas; and any areas which
was known to contain minerals of economic value was to be excluded
from Native Trust lands.21
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 neighboring 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
14th October 1947, recommendations of the Commission were effected by
20
See the Northern Rhodesia Government Gazette of July 31st, 1942. General Notice No.16.
21
Ibid.
187
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 99 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 authorized 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.
188
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 categorization of

land and the dual land tenure system. On 24th 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
22
See Report of the Johnson Land Commission,1967 Lusaka, Government Printer, p 1- foreword.
23
Ibid page 3.
189
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 and 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.
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.
24
Ibid page 4.
190
(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
The Johnson Commission appended to its report a draft Act entitled

“Property and Conveyancing Act.” The recommendations of the
Commission were not 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 unutilized 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
Constitution27. 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 unutilized 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 Barotse land.
25
Ibid page 14, See Chapter 7 entitled “Recommendations” at p161 of the Land Commission report
for the specific recommendations. The total number of recommendations made by the Commission
totalled 63.
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.
191
On 18th 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 the independent and unitary
state of Zambia which was to be born on 24th 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 18th 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.
192
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
policies31. 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
interests32.
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 consiged 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.
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
31
Mvunga, M,P, supra note 1 at P 2.
32
Ibid.
33
Ibid., at p 41.
193
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
liberization 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
194
CHAPTER TWELVE
LAND REFORMS IN THE SECOND REPUBLIC – THE LAND

(CONVERSION OF TITLES) ACT.
12.0 Introduction.
At independence, Zambia retained both the colonial categorization 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.
The uncertainty in the country’s land policies continued until 30th 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 system1. 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 3rd 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 K 150,000. On the same day, 3rd 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, June 30- July 3, 1975 – President Kaunda’s speech
has since become known as the Watershed speech.
192
12.1 Land Reforms Announced By President Kaunda
Among the land reform measures announced by President Kaunda which

were to take effect immediately were2:
(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.
Unutilized 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 1st 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 realized were to be taken over by local authorities.
(5) Control of Unplanned Townships.
Local Authorities were to see to it that no unauthorized 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 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 heritage3. In relation to land, UNIP’s conception of
2
Ibid., pages 43-47.
3
Mvunga, M.P, land law and policy in zambia, Gweru: Mambo Press, 1982, p.86.
193
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 people4.
Kaunda further observed:-
“We humanists categorically state that not a centimeter 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 terms5.”
Mvunga has criticized the above exposition of the African conception of

land owning as not adequately reflecting on the African concept of land
ownership6. Mbao has observed that “implicit in Kaunda’s observations is the
view that the predominance of group interest in land, be 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 19th August 1975, it was
4
Kenneth K.D, Humanism in Zambia and a guide to its Implementation, part Two, Lusaka: Government
Printer, 1974, p.14
5
Ibid pages 33-34.
6
supra note 3.
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.
194
deemed to have come into operation on the 1st of July, 19758. This was
obviously in line with President Kaunda’s announcement and order that
the land reforms he announced on 30th June 1975, were to take effect from,
‘one second past midnight’ of the 1st 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:
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 one hundred years, renewable,
commencing on the 1st 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
8
See Preamble to the Act as well as Section 2 of the Act.
195
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
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.”
196
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.
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 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
11
Mbao, M, supra note 7 at page 399.
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- page 67.
197
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 –
(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
198
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 1st 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;
(b) if it is a non-profit making charitable, religious,
educational or philanthropic organization 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.
13
See Verbatim reports of Parliament Debates, Columns 1849-50, 1854 (20 February 1985).
199
(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 consent14
Kaunda has identified the following weaknesses under the 1975 Act15.
(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
14
Mulimbwa, A.C. “Land Policy and Economic Development in Zambia”, in Zambia Law Journal, Special
Edition,1998 P.85.
15
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 62.
16
Ibid, at p 68.
17
Ibid, at P 69.
18
Ibid.
19
Ibid, at P 70.
200
(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 (SC)
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, 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,J.S 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.
20
Ibid.
201
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
Ispahani21, 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 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 initial, 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
21
[1921] 2 K.B 716.
202
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 1st of 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) were it is said:
"1147 (2) The courts have also been reluctant to find contacts unenforceable because the illegality doctrine
operates in an all or nothing way and there is no proportionality between the loss ensuring from non-
enforcement and the breach of statue. . .
and in the same paragraph -
203
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 Limited23, 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.
22
(1977) ZR 27.
23
(1983)ZR 40.
24
(1985) ZR 227.
204
In Mufalo V Nganga25, 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) Act. In Mpashi V Avondale Housing Project Limited26, 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 1st 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
25
(1988/89) ZR 88.
26
(1988/89) ZR 140.
27
(1987) ZR 29.
28
(1999) ZR 134.
205
All the cases cited above dealt with land under statutory tenure. It was not until
the case of Siulapwa V Namusika29, that the High Court was presented with an
opportunity to consider the effect of the 1975 Act on land held under customary
tenure. The case is excerpted below.
(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.
29
(1985) ZR 21.
206
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 them selves 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 Ltd30. 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 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
Limited31 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
30
(1984) ZR 72.
31
(1982/HN/809) (Unreported.)
207
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 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 1st 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."
208
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 1st 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 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?
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.
209
“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 systems33.”
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 Act34. In complying with the registration
provisions of the Lands and Deeds Registry Act Presidential Consent
cannot be dispensed with.
33
Ibid at pages 67-68.
34
210
12.9 SUMMARY OF CHAPTER TWELVE
This chapter has examined 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.
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.
211
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 liberalize 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 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
1
2
See Paragraph M [under Socio Economic Perspective] of the Manifesto for the Movement for the Multi-party
Democracy,1990.
243
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 6th 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, 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;
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 at page 73.
4
See the Hansard, National Assembly, Friday 11th August 1995.
5
Ibid.
244
(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.
245
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;
246
(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 application 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 Lands6.
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 (99) years unless he considers it necessary in the
national interest or in fulfilment of any obligations of the Republic and it
6
See Statutory Instrument No. 89 of 1996.
247
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 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 conversion7.
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 Nataional 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 assign8
Where a person applies for consent and the consent is not granted within
forty-five days of filling the application, the consent shall be deemed to
have been granted9. 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
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.
248
redress10. 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.
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
recognized under the Act. Thus, the rights and privileges of any person to
hold land under customary tenure are recognized 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; and
(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 situated11. 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 tenure12. 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:
10
Section 5(4) .
11
Section 8(2).
12
See The Lands (Customary Tenure) (Conversion) Regulations-Statutory Instrument No. 89 of 1996.
249
(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; and
(c) That the applicant is not infringing on any other person’s
rights13.
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 rent15.
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 99 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).
250
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 new areas for development of
land20. A council that wishes to develop any area in its locality may apply
18
Section 16(1).
19
Section 17(1.
20
Section 18(1).
251
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
(d) to perform such acts and carry out such duties as may be
prescribed under the Act or any other written law.
21
Section 18(2).
22
See the Lands [Land Development Fund] Regulations - Statutory Instrument No. 88 of 1996.
23
Section 20(1).
24
Hansard, supra note 8.
25
Section 20(3).
252
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 v SIWALE (1999) ZR 84 (SC)
[The Facts of the case appear from the judgment of 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 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 30th 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.
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.
253
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 he 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 Interstate 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 P.W. 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
254
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
255
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 v Phiri and Another –Lat/80/98 [Lands Tribunal]
[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 Appellant 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. L.4878 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 17th 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
256
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 25th 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 20th november 1996 Headman Mupwaya and his Committee recommended that he should apply for
title deeds and Chieftainesss Mungule offered him the land on 12th 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 26th 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 31st March 1998 and Certificate of Title
No. L4879 in respect of plot No. 12578/m Kabwe issued on 17th 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 Respondents.
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
257
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 Siwale33, the case which has been
referred to by the Advocates for the Appellant in their submission. Failure to consult persons who may be affected by
the grant offered against Section 3 (4) (c) and is therefore fatal.
33
(1999) ZR 84.
258
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. L. 4879 issued to the 1st Respondent on 17th 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.
Muzyamba J.S: 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 J8 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
34
SCZ Appeal No. 41 of 1999 (unreported).
259
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
[Unreported]
[ The facts of the case appear from the Judgment of the Supreme Court delivered by Chibesakunda,J.S ]
…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 28th September 1996, by current Chief Lesa. This Mr Van Rensberg had an Investor's License
No. 408/02/93 issued to him on 13th 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 28th 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 5th 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 23rd 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 12th 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 31st 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
260
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 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 11th 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 unutilized 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 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.
35
Ibid.
36
SCZ Appeal no. 41 of 1999.
261
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 5th March and 23rd 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 scrutinize 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 unutilized 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 analyze 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 land 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 the3rd 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
262
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 decendi 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 interstate. The Appellant 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.
263
(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 – [Lands Tribunal] [Unreported]
[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 16th April 1991, Mr. Raphael Joseph Mapulanga sold to him Farm No.,
1671/1 of Chongwe at the price of K 2,000,000.00. 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 6th March, 1991 Mr. Mapulanga in
the company of Honorable 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 K
140,000.00 as part payment for the sale of Farm No.1671//M Chongwe. This was on 16th 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 25th 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 3rd 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 23rd June 1997, which letter he was had been referred to the Respondent on 23rd
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 meter 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 29th 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
264
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
Govenor 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 17th 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
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
265
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 18th march 1976 wrote to the
Commissioner of Lands advising 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 villageHeadman 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 Chiefteness’ 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
37
See Johnson Land Commission Report Government Printer, Lusaka, p.46
38
(1999) ZR 166. (S.C).
266
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, C.J, as he then was, observed and
commented thus:-
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
[The Facts appear from the Judgment of the Supreme Court delivered by Ngulube C.J, 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.
267
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 K35million 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 K35million 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.
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
39
SCZ Judgment No. 5 of 2006- Appeal No. 162 of 2003. [unreported]
268
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.
(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 J.S, 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 2nd 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 Section 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.
269
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,J.S (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
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
40
(2001) ZR 87 (SC).
41
SCZ Appeal No. 130 of 2000.
270
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 predictability of court
decisions. The decision in Diocese of Monze does not lead to predictablility 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
[The facts of the case appear from the Judgment of the Supreme Court delivered by Silomba J.S]
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.
42
Pages 91-92
43
SCZ Judgment No. 16 of 2005, Appeal No 115 of 2002.
271
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.
272
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 Land
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 decentralize the Lands Tribunal. Currently
the operations of the Tribunal are centralized 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.”
273
13.4 PROPOSED CONSTITUTIONAL ENACTMENTS RELATING TO
LAND-THE MUNG’OMBA DRAFT CONSTITUTION
13.4.1 INTRODUCTION
On 17th 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 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 22nd June
2005. The Government issued its reaction to the Constitution Review
Commission draft Constitution on 31st October 2005.47 The final draft was
submitted in December 2005.
The Commission received Five Hundred and Twenty Two (522)

submissions relating to the subject matter of land.48 From the different
concerns raised by the petitioners the Commission felt that the
44
45
See Statutory Instrument no. 40 of 2003.
46
See Chapter 24 (dealing with land) of the Interim Report of the C.R.C at page 762. C.R.C 29th June 2005.
47
See Government’s reaction to the CRC Draft Constitution, 31st October 2005, Republic of Zambia.
48
See page 768 of the Interim Report of the C.R.C.
274
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 matters50. The following were some of the
submissions and recommendations of the Commission.
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 that52:
 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
49
Ibid.
50
Ibid.
51
This aspect is dealt with at pp. 768-770 of the Interim Report of the Constitution Review Commission.
52
Ibid p770.
275
regulation, for the use or common benefit, direct or indirect of the citizens of
Zambia: and
 In the regulation and administration of land, local authorities and Chiefs

should have a part to play within the context of devolution of power.
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
centralized. 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 considerations54.”
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 Cooperative society it was a
requirement that at least 75% 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.
53
See pages 770-777 of the Interim Report of the Constitution Review Commission.
54
Ibid page 773.
55
Ibid page 773.
276
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.
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:-

 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;
 Women shall have the right of access to and the right to own and acquire
property; and
 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:
 An investor within the meaning of investment laws of the country;
 A company incorporated in Zambia by non-Zambians of which 75% or

more of its shares are owned by Zambians;
 A non-Zambian statutory corporation created under an Act of

Parliament;
 A non-Zambian registered co-operative society with less than 25% of its

membership being non-Zambian;
 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’
 Where the interest or right is being inherited or being transferred through

survivorship or operation of law to a non-Zambian
56
ibid, page 775 – 776.
277
 A non-Zambian commercial bank registered under the Laws of Zambia; or
 A non-Zambian granted a concession or right under the Zambia Wildlife

Act, No. 12 of 1998.
The Commission further recommended that:
 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
 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:
 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 99
years, while a few wanted the duration to remain unchanged. Those who
favored 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.”
57
Ibid pages 777-778.
278
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
 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
 Leasehold of land should remain 99 years in order to allow Zambians optimum
utilization 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 Lands.59
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:
 establish a Lands Commission:

 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.
 State that the Lands Commission shall comprise the Commissioner of Lands and
five members to be selected from various institutions , including the Government.
58
Ibid 778.
59
Ibid 778-781.
279
 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:
 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:
 Re-establish the Office of Commissioner of Lands and provide that the
Commissioner shall be appointed by the President and ratified by parliament: and
 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 :-
 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
 The Lands Tribunal should be decentralized.
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 ‘final’ draft
Constitution.61 Most, if not all of the recommendations as incorporated in
the first draft Constitution of 29th 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
60
See the Draft Constitution of the Republic of Zambia. Secretariat , CRC Lusaka 29th June 2005, See Part
XIX of the Draft Constitution entitled “Land and Property”
61
Ibid.
62
See draft Constitution of the Republic of Zambia , 29th December,2005- Land and Property, Articles
327-338.
280
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.
(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.
63
The Article is dealt with under Chapter 14 of this book dealing with Compulsory acquisition of property
in Zambia.
281
(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) which is defined under the Act to
mean ‘land which is not situated in a customary area.”
Article 329 provides the constituents of stateland. 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;
282
(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 state 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.
283
(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 an Act of Parliament.
(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.
284
(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;
285
(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.
286
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 liberalization pursued by the MMD
Government, also entailed the liberalization 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 harmonized 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 Act64.
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
64
See Report of the Land Commission 1967, (Government Printer, Lusaka, 1967) p. 161 Chapter 7, see
recommendation no. 1. The Report is discussed under Chapter 11 of this book.
287
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 stateland. The merger of Reserves and Trust land reserves was more
than welcome as the colonial divisions or nomenclature were more
artificial than real. Infact 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 trustland 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.
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
65
See definition of Customary Area under section 2 of Chapter 184 of the Laws of Zambia.
66
See Report of the Land Commission, Government Printer, Lusaka, 1967, p. 161, see recommendation No. 2.
67
See Section 3(3) a-k of Chapter 184 of the Laws of Zambia.
288
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, harbored 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 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
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” in Zambia Law Journal, Volume 21-24
p.67.
289
consent he should give reasons for his refusal.69An 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 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 certificate 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 pages 91-92.
290
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 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.
1
Law ED.US 106-109 page 1015.
2
3
Chapter 189 of the Laws of Zambia.`
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.

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.
291
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
8
Dunning,H.C, ‘law and economic development in Africa: the law of eminent domain’ Colombia Law
Review 68 (1968)1286 at 1292.
9
Chapter 87 of 1958 edition of the Laws of Zambia - since repealed.
292
at independence became an Act, remained on the statute books until 1970
when it was repealed by the Lands Acquisition Act 1970.10
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 itemized 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
10
See Section 30(1) of the Lands Acquisition Act- Chapter 189 of the Laws of Zambia.
11
12
See James, R.W, “Mulungushi Land Reform Proposals Zambia,” 9 Eastern Africa Law Review 124
(1972).
293
morality, public health, town and country planning or land
settlement; or
(ii) in order to secure the development or utilization 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 unutilized
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, unutilized, underdeveloped or if it was owned by an
absentee landlord.
14.1.2 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, 196913. Section 4 of the said Amendment Act
repealed the whole Section 18 of 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
13
See Act No. 33 of 1969.
294
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, unutilized
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 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
Section 18 (3) (iii).
15
Ibid., 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.
295
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 the exceptions under article 16(2) (j) and (k)
which provide as follows:
(j) in terms of any law relating to abandoned, unoccupied, unutilized or

undeveloped land, as defined in such law;
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.
296
Article 65 of the Mungomba Final Draft Constitution17 (which fall 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 -
(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.
(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.
acquired.
17
The proposed Constitutional provisions relating to land are dealt with under section 13.4 of Chapter 13.
297
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 utilized land and not
undeveloped and unutilized land.
Absentee Landlord 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:-
…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”.
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
20
See Hansard,25 February,1970.
298
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 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 provides as follows:-
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.
21
Wise v The Attorney – General (1990/92) ZR 124. This case is excerpted under the section dealing with
case law.
299
(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 unutilized 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 unutilized 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.”
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.
300
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. The section

provides that:-
(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 22nd 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.
301
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 Vs Attorney General (1990/1992) ZR 124 (HC)
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 in equitable 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.
302
10. That about the week following the said decision of the Deputy Chief Justice the then Right Honourable
Prime Minister E Kebby Musokotwane, M.C.C., MP, called the plaintiff to his offices and informed him one
Raymond Barrett of E.F.Hervey 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 the 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 compulsory 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 s. 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 s. 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.
303
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.

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.
Hervey 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 Hervey 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 Hervey
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. Hervey 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. Hervey 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. Hervey 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
304
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. Hervey Limited, namely Raymond Barrett
and Patrick Katyoka, on three to four occasions in his office.
iii) The witness is aware that E. F. Hervey 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 12th March, 1989. Thereafter someone authorised them to continue
occupying the farms until 26th June, 1989 when he formally allowed E. F. Hervey 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.Hervey 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. Hervey 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. Hervey 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.
305
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
In the case before me, the evidence has shown that acquisition of the two farms and the allowing of E. F.
Hervey 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. Hervey 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.
306
(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. 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 respondents 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
respondents’ 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, authorized
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
24
[1925] AC 338 (P.C).
25
at P. 343.
307
(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. 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 C.J, 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
26
(1993/94) ZR 115 (SC).
308
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."
309
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)"
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 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
27
(1990-1992) ZR 38.
28
[1988] LRC (const.) 472.
310
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 utilized 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
authorized 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 replaces by Act No. 11 of 1992. The 1982 Act emended
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 an "independent"
Parliament which was formed by the second appellant to authorize 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 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 at 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
29
(1988-1989) ZR 19.
311
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 infact 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 -
and 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.
312
(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 (unreported)
[The facts of the case appear from the judgment of the Supreme 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.
he failed to appreciate that the compulsory acquisition was not done in good faith.
313
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 no 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 utilizing 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 VS
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.
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
30
(1969) ZR 99.
31
(1993-1994) ZR 115.
314
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 utilizing
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 utilized 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
subsection 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
315
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 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 6 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 utilize 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.
32
[1906] 2 C.B. 335.
33
This is discussed under Chapter 21 dealing with procedures on land alienation.
316
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 [H/C Unreported]
Mwanamwambwa M.S. 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 it’s 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.
317
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
318
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 U.S. 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.
34
These were stated in the affidavit in opposition to the application for Judicial Review sworn by the then
Minister of Lands, Hon. Judith Kapinjimpanga.
319
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 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 unutilized 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
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.
320
14.6 Summary of Chapter Fourteen
This chapter has examined and considered the law relating to 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, unutilized or undeveloped, or is owned by a non-
resident.
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.
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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 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.
1
Law ED.US 106-109 page 1015.
2
3
Chapter 189 of the Laws of Zambia.`
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.

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.
291
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
8
Dunning,H.C, law and economic development in Africa: the law of eminent domain’ Colombia Law
Review 68 (1968) 68.1286 at 1292.
9
Chapter 87 of 1958 edition of the Laws of Zambia - since repealed.
292
at independence became an Act, remained on the statute books until 1970
when it was repealed by the Lands Acquisition Act 1970.10
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 itemized 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
10
See Section 30(1) of the Lands Acquisition Act- Chapter 189 of the Laws of Zambia.
11
12
See James, R.W, “Mulungushi Land Reform Proposals Zambia,” 9 Eastern Africa Law Review 124
(1972).
293
morality, public health, town and country planning or land
settlement; or
(ii) in order to secure the development or utilization 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 unutilized
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, unutilized, underdeveloped or if it was owned by an
absentee landlord.
14.1.2 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, 196913. Section 4 of the said Amendment Act
repealed the whole Section 18 of 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
13
See Act No. 33 of 1969.
294
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, unutilized
or undeveloped land, as defined in such law;
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 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
Section 18 (3) (iii).
15
Ibid., 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.
295
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 the exceptions under article 16(2) (j) and (k)
which provide as follows:
(j) in terms of any law relating to abandoned, unoccupied, unutilized or

undeveloped land, as defined in such law;
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.
296
Article 65 of the Mungomba Final Draft Constitution17 (which fall 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 -
(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.
(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.
acquired.
17
The proposed Constitution provisions relating to land are dealt with under section 13.1.5 of Chapter 13.
297
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 utilized land and not
undeveloped and unutilized land.
Absentee Landlord 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:-
…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”.
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, ZambiaLawJournal, Volume
15.1983. at p.93
20
See Hansard,25 February,1970.
298
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 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 provides as follows:-
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.
21
Wise v the Attorney – General (1990/92) ZR 124. This case is excerpted under the section dealing with
case law.
299
(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 unutilized 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 unutilized 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.”
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.
300
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. The section

provides that:-
(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 22nd 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.
301
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 Vs Attorney General (1990/1992) ZR 124 (HC)
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 in equitable 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.
302
10. That about the week following the said decision of the Deputy Chief Justice the then Right Honourable
Prime Minister E Kebby Musokotwane, M.C.C., MP, called the plaintiff to his offices and informed him one
Raymond Barrett of E.F.Hervey 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 the 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 compulsory 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 s. 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 s. 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.
303
The statement of defence is as follows:

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.

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.
Hervey 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 Hervey 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 Hervey
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. Hervey 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. Hervey 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. Hervey 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
304
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. Hervey Limited, namely Raymond Barrett
and Patrick Katyoka, on three to four occasions in his office.
iii) The witness is aware that E. F. Hervey 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 12th March, 1989. Thereafter someone authorised them to continue
occupying the farms until 26th June, 1989 when he formally allowed E. F. Hervey 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.Hervey 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. Hervey 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. Hervey 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.
305
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
In the case before me, the evidence has shown that acquisition of the two farms and the allowing of E. F.
Hervey 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. Hervey 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.
306
(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. 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 respondents 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
respondents’ 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, authorized
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
24
[1925] AC 338 (P.C).
25
at P. 343.
307
(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. 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 C.J, 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
26
(1993/94) ZR 115 (SC).
308
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."
309
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)"
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 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
27
(1990-1992) ZR 38.
28
[1988] LRC (const.) 472.
310
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 utilized 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
authorized 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 replaces by Act No. 11 of 1992. The 1982 Act emended
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 an "independent"
Parliament which was formed by the second appellant to authorize 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 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 at 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
29
(1988-1989) ZR 19.
311
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 infact 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 -
and 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.
312
(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 (unreported)
[The facts of the case appear from the judgment of the Supreme 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:
he failed to appreciate that the compulsory acquisition was not desirable or expedient.
he failed to appreciate that the compulsory acquisition was not done in good faith.
313
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 no 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 utilizing 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 VS
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.
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
30
(1969) ZR 99.
31
(1993-1994) ZR 115.
314
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 utilizing
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 utilized 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
subsection 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
315
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 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 6 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 utilize 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.
32
[1906] 2 C.B. 335.
33
This is discussed under Chapter 21 dealing with procedures on Land alienation.
316
14.6 Summary of Chapter Fourteen
This chapter has examined and considered the law relating to 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, unutilized or undeveloped, or is owned by a non-
resident.
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.
317
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, the law of real property, London, sweet and Maxwell, 1999, at p. 1338.
318
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 centers (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 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
5
No. 55 of 1968.
6
See Zambia, Hansard no. 16g, Daily Hansard, Wednesday 16th October, 1968 at p. 294.
7
Ibid.
319
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 1st 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 such dwelling or commercial premises
include the use in common with the landlord or other persons
authorized 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
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.
320
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 an as an incident of such
employment;
(b) save as to the rent charged in respect of any authorized 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 premise 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 window 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
321
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
11
See the cases 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-
were the Act was in issue and/or discussed.
322
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:-
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 1st
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; an not to evict or
detrain without an order of the court.12
12
Official Verbatim report of parliamentary debates of the fourth session of the second National Assembly,
12th January – 9th March 1972, Government Printer Lusaka.
323
The preamble to the Rent Act generally gives the scope and objectives of
the Act. The preamble provides that it is:-
“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
324
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 criminalized 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 criminalizes 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% 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.
325
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 guilt 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 criminalized.
326
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.
327
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.
13
See the Rent (Local Authorities and National Housing Authority Defaulters Eviction)
Regulations, 1974- Statutory Instrument Number 123 of 1974.
328
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 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 vs 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
appropriate16.
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.
329
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 Vs. SIAMIAZE and ANOTHER -SCZ APPEAL NO. 49 OF 1997 [S C]
unreported
[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.
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 17th August, 1995 the Respondents issued a specially endorsed writ claiming for the return of the
confiscated household effects. In an application under Order 13 of 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.
330
(b) The Purpose of the Rent Act is for the Protection of Tenants.
Drake V M.B.L. Mahtani And Another (1985) Z.R. 236 (S.C.)
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
rospondent 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, J.S:- 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 criticized on the grounds that a former tenant
holding over under the protection of the Rent Acts 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
331
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.
17
(1985) ZR 182.
332
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 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
333
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 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 Corporation19, 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.
18
[1949] SC 195.
19
(1994) ZR 144. This case is excerpted in chapter 5 of this book dealing with leases and licences.
334
(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 [S.C]
[The facts of the case appear from the judgment of NGULUBE, D.C.J, 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:
''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 1st 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
335
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.
336
15.5 Summary of Chapter Fifteen.
This chapter has examined and considered the law relating to 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 criminalized)
(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 however, 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.
337
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 31st 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 temporary1968 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 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
1
2
See the Daily Parliamentary Debates (No. 28C), Thursday, 25th November, 1971, at P.134.
338
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

1st 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;
(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
3
Ibid.
4
See preamble of the Act.
5
See the Observations of Doyle C.J 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.
339
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.
340
16.3 Security of Tenure under the Act
Security of tenure is secured under section 4 of the Act. The section

provides that:-
(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
341
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 L.J 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 obiviously 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
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
7
Section 5(2).
8
Betty’s Cafes Ltd v Philips furnishing Stores Ltd (1959) AC 20 at pages 43-44. The case is excerpted
under the segment dealing with case law.
342
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
request9. 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 tenancy10. 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 quit11. 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:
(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
9
Ibid., Section 6(2).
10
11
12
13
Appollo Refrigiration Services Co. Ltd v Farmers House Ltd (1985) ZR 182.
343
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 s ubstantial 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
14
Ibid, Section 12(1).
344
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 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-
345
(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.
346
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 C.J, 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 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 cattle16. 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
15
Supreme Court appeal No. 141 of 1996 [SC]
16
See Halsbury’s Laws of England, 3rd edn, at page 87-para 124.
17
Lyons v Elliott [1876] 1 QBD.210 at page 213, per Blackburn, J.
18
Halsbury Laws of England 3rd edn at page 90 para 130.
19
See Child v Edwards [1909] 2KB 753.
347
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
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 (5) 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 authorized 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 Kamaya26, 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.
20
See the case of Hampako v National Housing Authority (1988/89)ZR 61 excerpted under Chapter 15 of
this book.
21
See Halsbury’s Laws of England 3rd edn Butterworth and Co. Publishers Ltd, at page 100 paragraph 152.
22
See the statutes in Halsbury’s Statutes of England 3rd edn, volume 9.
23
24
Robinson v Waddington (1849) 13 Q 733.
25
See Halsbury’s Laws of England 3rd edn, at page 129, para 223.
26
(1987) ZR 7
348
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) Z.R. 37 (H.C.)
[ The Facts of the case appear from the Judgment of Doyle, C.J]
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.
The plaintiff was a sub-tenant of Plot No. 1671 from Atlas Copco (Zambia) Limited for the period 1st May, 1972, to 31st
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 the 8th 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 26th 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 the 8th 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 the 31st March, 1973. According to the plaintiff he
remained in occupation until Monday, 2nd April, the 1st being a Sunday, and would have continued to remain there but
for what happened thereafter. On Monday, 2nd 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.
349
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 the 10th April, 1973, he issued
this writ. He paid no rent after the 31st March.
By and large there is little material difference between the plaintiff's history of the events leading up to the 2nd April,
1973, and that of defendant. Defendant threw the blame for their mutual discord upon the plaintiff. According to him
what happened prior to the 2nd of 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 the 31st March, 1973. On the 2nd April, 1973, he
collected some of his things and left some.
The defendant had never seen Miss Shungu on the 2nd 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 the 2nd of 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 2nd 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.
350
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, Hants27 -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 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:
27
[1971] 3ALL.ER 380.
351
"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.
352
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.
353
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. (SC)
[The facts of the case appear from the Judgment of the Supreme Court delivered by MUZYAMBA, J.S.].
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 17th 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
354
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 tenant 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 7 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
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 [unreported].
355
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 there 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.
(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) Z.R. 1 (S.C.)
[The facts of the case appear from the Judgment of the Supreme Court delivered by NGULUBE, D.C.J, 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 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, C.J., held that even a term of eleven
months was a terms 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:
'' 'Terms of years absolute'

'Terms 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
30
(1974) ZR 37.
31
(1974) ZR 270.
356
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 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, D.C. J., 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,
C.J., 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, D.C.J., 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 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."
32
(1977) ZR 92
357
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 summarize, 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 emphasized 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 C.J (as he
then was) 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 franctic counterclaim for a new tenancy; that is not what the
relevant Act stipulates.
33
Appeal No, 141 of 1996.
358
A landlord may rely on a notice to quit given by a previous landlord. In Appollo
Refrigeration Services Co. Ltd V Farmers House Ltd34, 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 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 (SC)
[ The facts of the case appear from the Judgment of the Supreme Court delivered by Ngulube Acting Chief Justice]
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 27
February 1985. On the 29 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 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
34
(1985) ZR 182, at p.183-184.
35
[1961] 2 ALLER 197.
359
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.
360
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 Ltd36, 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 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 1
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
36
(1985) ZR 182.
361
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 section 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
362
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) Z.R. 39 (S.C.)
[The facts of the case appear from the judgment of the Supreme Court delivered by NGULUBE, D.C.J, as he then
was]
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 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
37
Woodfall’s Landlord and Tenant, 1994 Vol. 2 , London: Sweet and Maxwell, Paragraph 22.104. P 22/87
38
[1959] A.C. 20.
39
[1959] A.C. 20,32.
363
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 Investments40. 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
Lord41 . 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.
364
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 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. The case is excerpted below.
Afro Butcheries Limited v Evees Limited Supreme Court Appeal No. 28 Of

1998 [unreported]
[ The facts of the case appear from the Judgment of Supreme Court delivered by Ngulube, D.C.J, 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 the were proposing to open a chemist’s shop in
42
(1985) ZR 182.
365
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 authorized 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 head 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 part of these costs. The costs of all
previous proceedings, both here and below, will therefore abide the outcome of this appeal as well.
366
(g) While a Tenant will be protected under the Act the Landlord will equally receive the Courts protection
if he has infact 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. (unreported)
[ The facts of the case appear from the judgment of the Supreme Court delivered by NGULUBE D.C.J, 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.440of 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 1n 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 bad 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:
“on whether the applicant should have anew 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.”
43
(1967) ZR 109.
367
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 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 criticized 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 recognized 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 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
44
(1987) ZR 39.
45
Supreme Court Appeal No. 23 of 1999 (Unreported).
368
refusing to agree to an increase in rent. The Kapembwa case is excerpted
hereunder.
VINCENT KAPEMBWA V MULLA BROTHERS LTD Appeal No. 23 of 1999 (S.C).

[ The facts of the case appear from the Judgment of the Supreme Court delivered by Ngulube, D.C.J, as he then was]
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 he 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 landlord 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 Limited46, 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 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
46
(1987) ZR 39.
369
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 landlord 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
grounds 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 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
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 June 28,1955, ,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
authorized 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.
47
[1959] AC 20.
370
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 Iandlord 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 June 14,
1956, at a rent of £3,000 per annum and otherwise upon the terms of a lease dated April 29, 1946,to which I will, refer
later. The Court of Appeal have by a majority (Birkett and Romez.L.JJ.,'dissentiente Lord Evershed M.R.) 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 June 24, 1955, on'the whole of the premises in question under a series of leases, the last of which was
dated April 29, 1946, and was for a term of eight years from January I, 1946, at a rent of £1,400 per annum. On
September 23,.)953, 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 January I, 1954, at a rent of £2,000 per annum and otherwise on the terms of the said lease. This tenancy was
from January 1, 1955, continued by section 24 (1) of the 1954 Act and has since February 17, 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 August 25, 1953, and the purchase completed on March 1,
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 y 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 April 23, 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 June 28,
1955, requested the grant of a new tenancy of the premises commencing on June 24, 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 October 27, 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
371
witness action by the judge. It was heard with oral evidence before Danckwerts J. on April 16, 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 June 24, 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 April 23, 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 August 15, 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 April 23, 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
372
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 April 23, 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 AsquithL.J.), than
whom there have been few greater masters of the English language in judicial interpretation or exposition, in Cunliffe
v. Goodman48,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 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 L.J. 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 harmonizes
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
48 [1950] 2 KB. 237

.
373
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 carryon 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 dismissed with costs. That means that the application of the appellants for the grant of a new lease fails and must
be dismissed.
49
Ibid.
374
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.
375
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,1first came into operation in Northern Rhodesia on 1st November
1914. The Ordinance was amended from time to time with the major
amendments being effected on the 1st 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 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.
1
376
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 discussed 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.

(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-
(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.
2
(1967) ZR 109 – The case is Excerpted under section 17.15 dealing with case law.
377
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 aforesaid and not

registered within the time 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 Ismail3, 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
3
LRNR (1949-54) at page 563.
4
LRNR (1949-54) at page 345 the case is excerpted under chapter 10 dealing with the doctrine in Walsh
v. Lonsdale.
5
(1975) ZR 152.
378
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 Mr. Justice Woodman in Sundi v Ravalia appears
to be a sound one in the context of section 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 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.
6
[1949-1954] NRLR Vol. p 765. The case is referred to under Chapter 10.
379
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
380
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:-
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
7
(1983) ZR 135 – The case is excerpted under section 17.15 dealing with case law .
8
(1999) ZR 166 (SC) - The case is excerpted under Section 17.15 dealing with case law.
381
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:-
(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 section

provides that:-
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
9
(1988/89) ZR 194 - The case is excerpted under Section 17.15 dealing with case law.
382
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 seised
of or as taking estate or interest in the land therein described is
seised 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. The section provides that:-
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.”
10
Supra note 8
383
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.
This section is discussed in the cases Magic Carpet Travel And Tours 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:-
11
(1972) ZR 66 – the case is excerpted under section 17.15 dealing with case law.
12
(1984) ZR 55 – the Case is excerpted under section 17.15 dealing with case law.
13
Ibid.
14
(1999) ZR 61 – the case is excerpted under section 17.15 dealing with case law.
15
(1972) ZR 66.
384
(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.
17.13 Appeals to Court from Decisions of the Registrar.
Section 87 provides for appeal to Court from decisions of the Registrar.

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 is discussed in the Case of New Plast Industries v The

Commissioner of Lands and Another.17
16
ibid
17
Supreme Court of Zambia Appeal No.8 of 2001 [unreported]- The Case is excerpted under section 17.15
dealing with case law.
385
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) Z.R. 109 (C.A.)
[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:
"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:
386
"6. 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:"
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 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.
18
[1901]2 Ch. 86.
19
[1855] 24 LJMC 110.
387
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 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."
20
[1965] 2 ALL ER 786.
388
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 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) Z.R. 135 (H.C.)
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:-

(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
21
(1951), 5 NRLR 567.
389
The case is excerpted below
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.
(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 7th 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 2nd June, 1980. The Deed is
purported to have been executed on 20th 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 3rd 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
390
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 he 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 Johnanes 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:
(a) 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;
391
(b) To nullify the survey and subsequent sub-divisions of the Plaintiff's property as sanctioned by the
Lands Disposition Committee on 28th February, 1978;
(c) 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 net
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 older 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 [SC]
[The facts appear from the judgment of the Supreme Court delivered 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.
392
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
393
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 maneuvers 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 authorize 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 mis description 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.”
394
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. (SC).
[The facts of the case appear from the Judgment of the Supreme 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 6 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 1 of July, 1949. He also produced a second provisional certificate of title
dated 30 September 1971 setting out the same facts as the first certificate. Finally he produced a full
certificate of title dated 10 February 1988 showing that the third respondent was entitled to Farm 836 for a
term of 99 years from 1 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.
395
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 5 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.
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 12 years (30 years in the
22
[1975] 1 ALL. ER 504.
396
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 actions24. 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”
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 3rd respondent Zambia Consolidated Copper Mines
Limited on the 5th February, 1948 i.e. 12 years before the land become 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
23
See generally Chapter 21 of Megarry and Wade, the law of real property, 4th ed, Stevens and Sons
Limited, London, 2000.
24
Dixon, M, land law, Cavendish Publishing Limited, London, 1994, P.245.
25
Elias,T.O, the nature of african customary law, Manchester University Press, Manchester, 1952 at p.
166
397
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 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 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 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 people or 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
26
ibid at pages 167-168.
27
Meek, C.K, Land Law and Custom in the Colonies. London: Frank Cass and Co. Ltd, 1968 P.24-25
28
LAT 20/99.
398
by the appellant’s late father, had set up a village on the farm without the
appellants or his late father’s consent. The Respondents alleged in the Lands
Tribunal that their forefathers set up a village called kasavera 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
399
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
400
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) Z.R. 66 (H.C.)
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
401
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
402
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 Moyo29, 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 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.
29
[1984] ZR 55.
403
(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 (HC)
[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.
404
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 Others30
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 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.
30
Supreme Court Appeal No. 61 of 1997.
405
(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. Scz No 8

Of 2001 [unreported]
[The Facts of the case appear from the Judgment of Sakala, AG. Deputy Chief Justice, 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
406
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
Section10 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 Council31, 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 form 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.
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
31
[1974] ZR 241.
407
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.
408
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
document, to provide for the issue of certificate 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.
409
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 neighbor’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 or was transplanted 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
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
Governer and impose building standards.
1
Megarry and Wade, the law of real property, London 4th ed, Stevens and Sons Limited, London, 2000
p.1086-
1087.
2
Ibid.
3
Ibid.
4
Chapter 123 of 1959 Edition of the Laws.
5
Ibid, section 23.
410
On 16th 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
foregoing9
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 President may, by statutory
order apply all or any of the provisions of the Act to any customary area12.
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
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 of Zambia.
10
See section 3 (1) of Chapter 283 of the Laws of Zambia.
11
Cap 184 of the laws of Zambia.
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.
411
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 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 2415.
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
13
See subsections 1,2,3,4,5,6,7 and 8 of Section 4.
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.
412
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 Planner16.
The Secretary to the Tribunal is appointed by the Minister.17
Section 11 (1) of the Act provides for appeals to the Tribunal. The section
provides that-:
(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), 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
16
Section 7 (5) of the Act.
17
Ibid.
413
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
414
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 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 locals
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
415
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.
416
(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. The

(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. The

(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
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.
417
18.7 Control Of Development And Subdivison 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
418
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
419
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
420
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
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.
421
notification of the decision or such longer period as the Tribunal in
writing may agree, and in the manner prescribed, appeal to the
Tribunal.
(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.
422
18.10 Enforcement of Planning Control- Enforcement Notice
Section 31 deals with enforcement of planning control. The section
provides that:-
(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
(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
423
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 section
provides that:-
(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
424
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.
(1) For the purpose of the execution of his functions
425
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 :-

“To control the demolition and removal of building 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.
21
22
426
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 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 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.”
23
See Preamble to Chapter 295 of the Laws of Zambia.
24
See the Regulations under the Act.
427
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;
428
(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) Z.R. 1 [T.C.P.T]

[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, Mindola 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 the 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
429
store for consumption of 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 Mindola 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 10th 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'.
430
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 Mindola 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 Mindola smallholdings would have to form part of that extra
residential area. The council, he submitted, thus had an interest in the Mindola 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 Mindola 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 Mindola 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 beerhalls. 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:
431
' 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 . . .'
432
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 applicants 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, C.J. 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.
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.
25
1960 R & N 199.
433
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 user of his land. As to this there is no need for us to say more
than that we find this contention quite unsupportable.
(The Tribunal went on to consider the merits of the appeal and continued as follows:
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. The parties will pay their own costs of appeal.
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 Mufulira26. 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.
26
(1967) ZR 3. [T.C.P.T].
434
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 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) Z.R. 3 [T.C.P.T]]
[ The facts of the case appear from the Judgment of the Tribunal 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
435
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, Sirs 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. M. H. L. 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.
436
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 the 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 the 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, there fore, 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 the 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 the 14th 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 16th July, 1958, addressed to Mrs
Gill by the Town Clerk): and by taking in these older chidren the appellant was contravening special condition
437
(i) of the conditions attached as Appendix I to the certificate of registration of the nursery in her name dated
19th 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."
438
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 these 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.
439
(c) An Occupier in a good class residential neighborhood 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) Z.R. 162 [T.C.P.T]
[The Facts of the case appear from the Judgment of the Tribunal 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:
440
(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 (S.C.)
[The facts of the case appear from the Judgment of the Supreme Court delivered by SAKALA, J.S, as he
then was.]
This is an appeal against a judgment of the High Court entered in favor 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
441
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
favor 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 January1996, 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.
442
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 centers 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.
443
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 [T.C.P.T]
[The Facts of the case appear from the Judgment of the tribunal delivered by MATIBINI 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.
444
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 6 th 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?
445
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 1WLR 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 Corporations27, it was observed as page 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 legimately 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.
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 atiose ...
18.6 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
27
1960, 1ALL ER 659
446
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 summarized 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.
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.
447
18.7 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
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 of subdivision of land29.
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 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 meaning of 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 amounts 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.
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.
30
The Order was issued by the Minister pursuant to section 23 of the Act – See the Subsidiary Legislation
to the Act.
448
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 urbanized

country in subsahara Africa (excluding South Africa) with approximately
20% 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 program 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 unauthorized 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 35 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 immense social problems of which we already have enough.
Therefore, from now onward local authorities must see to it that no
1
Stefanie Knauder, “shacks and mansions”, “an analysis of the intergrated housing policy in zambia.”
1982, Multimedia Publication, Lusaka, page 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 page 17.
449
unauthorized 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
unauthorized 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 today faced with immense problems of unauthorized or illegal
settlements.
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 recognized 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 regularization of unauthorized 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 legalizing 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) 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
Improvements 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. June 30- July 3, 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
450
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. The section
provides that : -
(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;
(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;
8
The Statelands and and Reserves Order, 1928-1964 have since been repealed by the Act.
451
(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 99 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

unauthorized 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)
9
Ibid.
452
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 legalized by the Minster using

the powers vested unto him under Section 3710. 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.
(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.
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.
453
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
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
11
12
13
14
454
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 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 commercialization 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
capitalizing on the scarcity of housing. However, rent controls
have a long and unsuccessful history.16
15
See The Housing (Statutory and Improvement Areas) Bill 1972, Daily Parliamentary Debates No. 36,
Friday 2nd August 1974.
16
Matibini,P, “the urban housing problem for low –income groups with special reference to the city of
Lusaka, L.L.M. Thesis, UNZA, Lusaka. p.49-51
455
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 99 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 convenants 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.
(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.
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.
456
In view of the provisions of subsection 3, of section 6 persons occupying
land in Statutory Housing and Improvement Areas are still subtenants 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 percent of her
population live in urban areas. Of the urban population, 50
percent 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 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
stands 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
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, Volume 15,1983
at pages 86 to 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.
20
Simons, ibid
457
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 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
21
Ward, P.M Land Economics, 52 (1976)
22
Doebele, W.D, Urban Land Policies and Land Use Control Measures: global summary, (1975) p. 187-
197
23
Chapter 441 of The Laws Of Zambia [ now Chapter 194 of the Laws of Zambia]
458
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
24
Grimmes, op.cit.
459
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
Through out 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 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
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 Devt Plan 1972-76.
(Lusaka: Governemnt Printer) p.148
460
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.
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.
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.
461
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 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
30 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 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.
29
S.42 of the Housing ( Statutory and Improvement Areas) Act, CAP 441 (now Chapter 194 of the Laws of
Zambia.)
462
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
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
30
McClain, W.T., Legal Aspects of Housing and Planning In Lusaka’, in Urban Legal Problems in Eastern
Africa. Kanyeihamba,G.W & McAuslan,J.P.W.B. (eds) (Uppsala: Scandinavian Institute of African
Studies, 1978), p.77.
31
Collins J, Home Ownership Aspects of low-cost Housing in Lusaka’, in Kanyeihamba and McAuuslan.
Op.cit.
463
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 Ordinance 32
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
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
Chapter 1 of the Laws Of Zambia.
36
The Constitution of Zambia ( Amendment ) (No.5) Act, 1969.
37
Chapter 296 of The Laws Of Zambia (now chapter 189.)
464
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.
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
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 spit of comprehensive
38
S.15 of Lands Acquisition Act, Chapter 296 of the laws of Zambia.
465
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.
466
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 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
39
(1978) Z.R. 358.
467
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. Chinkuli 40 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 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.
40
1971/HP/407.
41
See for instance Part III of the Act dealing with registration of titles, and part IV dealing with caveats.
468
The Lands and Deeds Registry Act, as already pointed out does not apply
to Statutory Housing Areas and Improvement areas. The 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.] (S.C)
[The Facts appear from the Judgment of the Supreme Court delivered by GARDNER, A.J.S]
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 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."
42
Now Chapter 194 of the laws of Zambia
469
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 L.R.N.R.
(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 rightt.
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 at the original purchase price.
(see Snell's Equity (27th Edition) 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.
470
I would dismiss this appeal with costs to the respendent.
Chirwa, J.S., - 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:
471
(a) SUNDI v RAVALIA (1949) N.R.L.A. 345
(b) UPTON v WALKER (1971) 192
(C) LAKE KARIBA BOATING v KARIBA NORTHBANK COMPANY LIMITED (1982) Z.R. 35
(D) SITHOLE v STATE LOTTERIES BOARD (1975) Z.R. 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 purchases
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 the 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 of 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
472
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 been 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 came 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
cost to the respondent both in this Court and the court below to be agreed, in default to be taxed.
Chaila, J.S. - I have had an opportunity to reading the judgement just delivered by my brother Chirwa, J.S. 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, A.J.S. - 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.
473
19.4 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 unauthorized 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.
474
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 King2. 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.
On the complex character of land tenure, Meek has observed that
there are wide variations in the conditions under which land may be
held.
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 University Press, Manchester, 1956,
p.164
475
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. The
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, land4. 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
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
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?”
1965, Journal of African Law, Vol 9 No.2 at p. 115.
5
Ibid.
6
Ibid.
476
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 generalizations 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 Rhodesia8,Amodu Tijan v The Secretary Southern
Nigeria9, and Sobhuza II Vs 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
organization of a society as the measure of the property rights of the
indigenous people. The Privy Council commented thus:-
…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.
7
Mvunga refers to this as Colonial Attitudes, See Mvunga, M,P. “Land Law and Policy in
Zambia,” 1982 Mambo Press, p 24.
8
[1919]AC 211.
9
[1921]AC 399.
10
[1926] AC 518.
11
12
Ibid.
477
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 limit13”
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 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
13
Supra note 7 Per Lord Summer at pages 233-234.
478
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 C.J 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 land14.”
14
(1921) AC pages 402-405.
479
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 system of the Privy Council
Committee observed thus:-
…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 C.J 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 1940’s 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, C.J. 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 page 525.
16
1921 AC 399.
480
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 recognized 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-recognized 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
17
18
Ibid at p.164.
19
Ibid at p.165.
481
Elias went on to further observed that:-
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 organization. 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 C.J. (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
subgroups 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 land22. This view is not in any material respect different
from Elias’ concept of ‘corporate’ system of land holding espoused
above.
20
Ibid at page 166.
21
Supra note Ibid at p. 125.
22
ibid at p. 127.
482
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 land24.
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 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,
23
White, C.M.N, Factors Determining the Concept of African Land Tenure Systems In Northern
Rhodesia, in African Agrarian systems “ed., Bigbuy at p.364.
24
Jomo Kenyatta, Facing Mount Kenya, “The Traditional Life of the Gikuyu” Kenway Publications
East African Educational Publishers Limited, 1938, P. 26.
483
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
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
25
Ibid,at page 311.
484
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 community26.
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 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 Crown29. 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
26
Meek, supra note 3 at pp. 26-27.
27
Ndulo,M. Minning Rights in Zambia, Lusaka: Kenneth Kaunda Foundation. 1987, P.128.
28
Ibid p.78.
29
Ibid.
485
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
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
30
486
control and regulation in acquisition of land and its use and
cannot therefore, can be regarded as owner of the land.31
As pointed out above by the Mungomba Commission neither the

chief nor a headman is a land owning authority from whom all
estates are derived. The case of Mwiinda v Gwaba32 excerpted below
does exemplify the point that a village headman is not a land owing
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) Z.R. 188 (H.C.)
[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 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
31
See Interim Report of the Constitutional Review Commission, Government Printer Lusaka at
p.766.
32
(1974) Z.R 188 (H.C).
487
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
488
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
489
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 successors34.
Customary tenure is analogous to freehold. The rights in land

recognized 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 future35.
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
33
Supra note 2 at page 133.
34
Ibid.
35
See the Mwiinda v Gwaba Case excerpted above.
36
Meek. C.K. supra note 3 at p.24 – p.25. see also the observations made under section 17.14 of
Chapter Seventeen under the case of Lumanyenda dealing with adverse possession.
490
membership of a community. Once the requirements relating to
legitimate residence are satisfied individuals may acquire land in a
number of ways37. These are briefly discussed below:
(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 Zambia38.
(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 Intervivos
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,39or
(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 itself40. 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
37
See Generally Mvunga, M. P. Land Law Policy in Zambia, 1982, Mambo Press.
38
See The Land Report 1967 at page 47.
39
See 1967 Report at p. 47.
40
Mvunga, M. P. Land Law and Policy in Zambia, 1982, Mambo Press. p. 37.
491
economy, and not a new and revolutionary principle, given the type
of structure of villages found in Northern Rhodesia.41
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.
41
C.F. White, “Factors Determining the content of African land-tenure systems in Northern
Rhodesia”’ African agrarian systems,p.365.
42
ibid at p.51.
43
[1938] 14 N.L.R.L 41.
492
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 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.
493
CHAPTER TWENTY ONE
LAND ADMINISTRATION AND ALIENATION IN ZAMBIA*
21.1 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.3Dale 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 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
* This Chapter was co-authored with Mr. Frightone Sichone, 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’startegic 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 University Press, Oxford, 1999,p.10.
494
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
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
5
ibid pp.10-11.
6
Swedesurvey, Supra note 3 at P.1.
495
21.1 Brief Historical Background to Land Administration and Alienation In
Zambia.
21.1.1 British South African 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 African 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 may acquire, hold, encumber
and dispose of land on the same conditions as a person who is not a native, but no
contract for encumbering or alienating land the property of a native shall be valid
unless the contract is made in the presence of a Magistrate, and is attested by him,
and bears a certificate signed by him stating that the consideration was fair and
reasonable, and that he has satisfied himself that the native understands 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
7
supra note 2 at p.17.
496
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:-
(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.
8
See the Report of the Commission of Inquiry into Land Matters in Southern Province, Government
Printer, 1982, Lusaka.
497
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 99 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
(Trustland) Order 1964, vested State land and Reserves and Trustland 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
498
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 matters10. The President’s powers to grant
and alienate land were circumscribed by the Zambia (Stateland and
Reserves) Orders 1928- 1964, and the Zambia (Trustland 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 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
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.
11
Section 3 (7) of the Lands Act, 1995.
499
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
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 LAND

Subjects:
Lands policy
Land administration
Land surveys and mapping
Cadastral survey and exploration
Control of unauthorised settlements
12
Ministry of Lands Annual Report, Ministry of Lands, Lusaka, 2004.
13
Ministry of Lands Objectives, Ministry of Lands Annual Report 2002.
500
Registration of Lands and Deeds
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 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 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.
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
14
Section 5 of the Statutory Functions Act, Chapter 4 of the Laws of Zambia.
501
Zambia (Gwembe District) Orders, 1964, subject to the specific or general
directions of the Minister charged with responsibilities for land matters.
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 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. The
duties and responsibilities of the Lands Department under the
Commissioner of Lands have been construed and practised by usage in
that there is no Statute that defines or prescribes the powers and duties of
the Commissioner of Lands or the functions of the Lands Department.
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.16The 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.
15
Dale and Mclaughin, supra note 4 at p. 36.
16
Ibid.
502
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:
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 fraud19. 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
17
Chapter 185 of the Laws of Zambia. The Lands and Deeds Registry Act is covered under Chapter 17 of
this Book.
18
Dale and Mclaughin, supra note 4 P.37.
19
ibid.
20
Ibid.
21
ibid.
503
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.
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 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: -
22
Supra note 2 at p. 216.
23
Ibid.
24
Supra note 4 at P.46.
25
ibid.
26
504
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 : -
(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.
27
Ibid. section 4(1).
505
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
506
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
507
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 1980’s, 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 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.
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;
508
By establishment, Local Authorities fall under the Ministry of Local
Government and Housing and not the Ministry of Lands. Local
Authorities have a mandate to administer land under the Housing
(Statutory and Improvement Areas) Act.
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
nonpayment 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
21.3.2 Selection of Applicants and Allocation of Stands
The local authority is required to advertise the stands to prospective

developers in the national press. On receipt of the applications the 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
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.
509
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 authorizing 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. 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 Lands37, in an appeal to
the Supreme Court against a Lands Tribunal decision that the respondent
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.
37
SCZ Appeal No. 79 of 1999 [Unreported].
510
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 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
511
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 seem to
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 the 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
38
The agency of the Lusaka City Council for instance was terminated in October 2005 when it began
advertising and allocating 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).
512
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 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 Trustlands. Under the 1995 Lands Act Reserves and
Trustlands have been merged and are now known as customary area.41
The circular has therefore to be read with necessary modifications and
adaptations on view of the provisions of the Lands Act 1995. The
procedures under the circular, for alienation of Land in reserves and
trustland (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 administravely 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.
513
(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:
(b) extracts of the minutes of the full Council, with the
relevant resolution and showing who attended the meeting
duly authenticated by the Chairman of the Council and the
District Executive Secretary: and
42
See pages 2 and 3 of the Circular.
514
(c) four copies of the approval layout plan, showing the site
applied for, duly stamped and endorsed by the Chairman of
the Council and the District Executive Secretary where the
site has not been numbered.43
Circular No. LA/11202, dated 15th 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
21.3.4 The Housing (Statutory and Improvement) Areas
The Housing (Statutory and Improvement) Areas Act45 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
43
See page 3 of the Circular.
44
Visit of Chief Nyalugwe’s area in Nyimba District on the 19th December 2005 by the Commissioner of
Lands and the Minister of Lands during a Provincial tour of Eastern Province
45
Chapter 194 of the Laws of Zambia
515
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.
It may be argued that people occupy unplanned areas because formal or
planned land is not available. Fernando De-Soto has argued that people
resort to what he calls extra-legal means of satisfying their demand for land
if the lawful means are unable to answer the problem of planned
settlements. He asserts that:- “The failure of the legal order to keep pace with
astonishing economic and social upheaval has forced the new migrants to invent
extralegal substitutes for established law.”46
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.47 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.48 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.49 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
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
46
Supra note 42 p.71
47
No. 51 of 1956. The Ordinance came into operation on 14th March 1957. - see general notice No.66 of
1957
48
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, Page 39
49
ibid.
516
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.50
The preamble to the Agricultural Lands Act,51 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.
The section provides that :-
(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;
(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
50
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.
51
Chapter 187 of the Laws of Zambia
517
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 Act52. 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;53 Second, the
requirement of beneficial occupation;54 Third, restraint on freedom of
alienation by land holders55and fourth, prohibition against
abandonment.56
The above factors were deemed necessary for the promotion of
agricultural production.57
Dr. Mulimbwa has observed that the exercise of control for scheduled
land was fraught with various difficulties owing mainly to the fact that
52
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 1st July 1975. The Land
(Conversion of Titles) Act is covered under chapter 12 of this book.
53
see section 17(2) of the Act
54
see section 21(1) of the Act
55
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
56
see section 36 of the Act.
57
Supra note 50 at P.40
518
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.58
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 Act59. 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
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,60 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 provisio thereto of the
58
ibid at P.56.
59
60
2005/HP/0564 [Unreported].
519
Forest Act.61 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,62 the
Environmental Council of Zambia, established under section 3 of the
Environmental Protection and pollution Control Act,63 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.64 This means that in certain areas65 before a 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 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.
61
62
Chapter 283 of the Laws of Zambia. The Town and Country Planning Act is dealt with under chapter 18
of this book
63
Cap 204 of the Laws of Zambia
64
Part V of the Town and Country Planning Act is covered Under Section 18.7 of chapter 18 of this book.
65
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.
520
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 arises 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 Act66 and a Gazette Notice was to that effect issued.67
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;
i) initiate the survey and planning of the sites;
ii) coordinate all resettlement activities;
iii) mobilise resources; and
iv) 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 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
66
67
Gazette Notice No. 42 of 1992.
521
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 spell-out 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 1998.68 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 utilization 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
“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”69.
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
68
Act No. 12 of 1998.
69
Section 8(2) of the Lands Act, Chapter 184 of the Laws of Zambia.
522
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.70 Chiefs are reluctant to have this land
converted though the Director-General 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.
(a) Office of Commissioner of Lands.
In relation to the office of the Commissioner of Lands, the Mungomba

Constitution Review Commission71noted 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.”72
The Commission recommended for the establishment of a Lands
Commission whose functions would include, to hold, alienate and
manage any land in Zambia.73 The Commission further recommended the
re-establishment of the office of the Commissioner of Lands which should
70
This problem was discovered during the Lands Ministerial tour of the Eastern Province in the Mambwe
District on the 18th December 2005.
71
The proposed Constitutional enactments relating to land- the Mungomba Draft Constitution are covered
under section 13.5 of chapter 13 of this book,.
72
see The Interim Report of the Constitution Review Commission, 2005. P.779
73
ibid P.780.
523
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.74In spite of Governments
rejection of the recommendations, the establishment of a land commission
was nonetheless incorporated in the final draft constitution.75
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.
(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 cooperatives 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.76There
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
74
See Governments Reactions To The Constitutional Review Commission(CRC) Draft Constitution, 31st
October, 2005,Government of The Republic of Zambia.
75
See Articles 334-337 of the ‘final’ Draft Constitution.
76
Roth, Michael (ed), “Land Tenure, Land Markets, and Institutional Transformation in Zambia,” prepared
by the Land tenure center- University of Wisconsin – Madison, September 1994,p 24.
524
policy.77 It has been observed that to expect “the various ministries to
make expeditious decisions in a seemless fashion is simply too much to
expect.”78
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.79
Reliance on planning approval and provision 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.80 This reliance on the staff
of other Ministries means that the Ministry of Lands lacks control over the
rate of land delivery.81
Problems of co-ordination within the Ministry of Lands have also been

identified. It has been observed that the Lands Department and Survey
Department do not co-ordinate in order to provide cost-effective access to
land.82 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.”83
The Mungomba Commission similarly noted the lack of co-ordination

among the institutions that deal with land matters in Zambia.84 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.85
77
Ibid.
78
ibid.
79
ibid p.59.
80
ibid.
81
ibid.
82
ibid.
83
ibid.,p.59.
84
85
ibid at p777.
525
(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.86 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 survey. 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.
(d) Centralization 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.87 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 administration88. There is therefore, an
urgent need,as recommended by the Mungomba Commission, an for a
comprehensive review, harmonisation and updating of the various land
related laws in order to provide a clear regulatory framework for policy
implementation.
86
Supra note 71 at P.61.
87
Supra note 80.
88
Ibid.
526
(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 at least half of the cases before the Lands
Tribunal per in each session relate 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 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 is need to regulate the speculation
and subdivision of undeveloped land.89
89
supra note 74 at pages 773-4
527
(h) Need to Open Up More Land For Development.
The 1995 Lands Act established the Land Development Fund.90 The fund
is required to be applied for opening up of new areas for the development
of land.91 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.92 It appears that
most Local Authorities were until recently unaware of the guidelines or
regulations relating to the fund.93 Local authorities should take advantage
of this fund by opening up new areas for development.
(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% 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.94 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 45 days of filing the application, the consent shall be
deemed to have been granted.95 There is further a provision that in case
90
section 16(1) of Cap 184 of the Laws of Zambia.
91
ibid.,section 18(2).
92
These are Kazungula, Kalulushi, Chinsali, Mporokoso, Isoka, Chavuma and Mufulira.
93
See The Lands (Land Development Fund) Regulations S.I No. 88 of 1996.
94
See sections 12.5 and 12.7 of chapter 12 of this book.
95
See section 5(2) of chapter 184 of the Laws of Zambia..
528
the President refuses to grant consent within 30 days, he is obliged to give
reasons for the refusal.96
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 lead to efficiency and
professionalism in the discharge of duties by these departments.
The computerization 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.
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.97 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 decentralize the Tribunal. The
operations of the tribunal are currently centralized in Lusaka. There is also
need to fund the tribunal for it to effectively discharge its mandate under
the Act.
21.12 CASE LAW
(a) Powers of the Commissioner of Lands to allocate land- Vis a Vis - 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 [S.C]
[The Facts of the case appear from the Judgment of the Supreme Court delivered CHAILA, J.S.]
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.
96
See section 5(3) of chapter 184 of the Laws of Zambia.
97
See Section 13.4 of chapter 13 of this book
529
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 carryout 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.
530
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 General98 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 Ltd99.
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 Namasiku100 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
trustland. 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 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
98
(1966) Z.R. At page 10.
99
(1984) Z.R. 72.
100
(1985) Z.R. 21
531
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 Fund101. 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 General102. 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. 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 Commission103. 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.
101
(1978) Z.R. page 144
102
No. 43/96
103
(1951) CH. Division, P. 884
532
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 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.
533
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 Vs. Muntemba and Others104, 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 to the land.
Kabwe Rural Council at Chibombo, favorably 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
104
1990/HP/935 [High Court Unreported]
534
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;
(11) 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.
535
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 recognizes Daniel Muntemba as headman
Mulambwe. Being the chief of the whole area it is for him to recognize 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
authorized 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 he 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
counterclaim 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.
536
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.
537
INDEX
Adverse possession
Airspace
Annexation, fixtures
Barotseland
Barotseland Agreement
Bonafide purchaser for value without notice
British South Africa Company
Chattels
Claims to ownership of land
Common Law
Co-ownership
Compulsory acquisition
Contingent interests
Conversion
Conveyance
Corparcenary
Corporal Hereditaments
Covenants
Crown
Crown land
Demise, see lease
Derogation
Distress for Rent
Doctrine of notice
Dorminant Tenement
Easements
Enforcement notice
Enjoyment, Covenant for quiet
Entail
Equitable interests
Equitable mortgages
Equitable remedy
Equitable rights
Equity
Escheat
Estate pur autre vie
Estates of freehold
Estoppel
Exclusive possession
Fee Simple
Fee Simple absolute in possession
Fee tail
Feudalism
Feudation
Fixtures and Fittings
Foreclosure
Forfeiture
Future interests
Hereditaments
Implied covenant for quiet enjoyment
Improvements
Incorporeal Hereditaments
In personam
In rem
Interests
Joint tenancy
Jus accrescendi
Knight service
Land
Landlord
Lease
Legal estate
Legal interest
Legal mortgage
Lewanika concessions
Licence
Bare
Contractual
Coupled with a grant or interest
Protected by estoppel
Life estate
Limitation period
Lives in being
Local Authorities
Local plan
Lost modern grant
Mesne lord
Minerals
Mortgage
Neighbour
Notice
Nuisance
Ownership
Part performance, doctrine
Periodic tenancy
Permit of occupation
Perpetuities, rule agains
Personam, Rights in
Personal property
Personalty
Petty sergeanty
Planning permission
Possession
Prescription
Profits
Profits A Prendre
Proprietary Estoppel
Quasi- Easements
Real Property
Realty
Receiver, appointment
Redemption, Equity of
Re-entry
Rem, Rights in
Remainder
Remainderman
Rent
Reserves
Crown lands
Native
Trust land
Reversion, Estate in
Riparian rights
Royal Charter
Servient Tenement
Servitudes
Settlements
Socage tenures
Specific performance, decree of
Structure plan
Subletting
Sub-infeudation
Successive interests
Survivorship, Right of
Tenancy, see also lease
at sufferance
at will
by estoppel
in common
joint
periodic
Tenant
Tenant for life
Tenures
Term of years
Tort
Treasure trove
Trust
Unities,
Co-ownership, in
Vested interests
Villain tenure
Water rights
Wild Animals
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.35According 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
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
OUTLINE OF TABLE OF CONTENTS
Preface
Table of Cases
Table of Statutes
CHAPETR 1
INTRODUCTION
1.0 The Nature and Scope of Land Law………………………...1

1.1 Proprietary Nature of Interests or Rights in Land………….2
1.2 Sources of Land Law in Zambia……………………………...4
1.2.1 Statutes Enacted by the Zambian Legislature…………….4
1.2.2 English Common Law……………………………………… 5
1.2.3 Principles of Equity………………………………………… 7
1.2.4 Customary Law………………………………………………7
1.2.5 English Statutes………………………………………………8
1.2.5.1 English Statutes Applicable to Zambia by Virtue of the English Law
(Extent of Application) Act………………………………………..8
1.2.5.2 English Statutes Applicable to Zambia by virtue of the British Acts
Extension Act……………………………………………………….8
1.2.5.3 Judicial Precedents………………………………...……….9
1.2.5.4 Text Book Writers……………………………..…………..10
1.3 The Two Basic Doctrines of English Land Law…..……......10
1.3.1 Doctrine of Tenures…………………………..…………......10
1.3.2 The Doctrine of Estates……………..…………………14
1.3.2.1 Freehold Estates…………………………………………...14
1.3.2.2 Fee Simple Estate………………..…………………………15
1.3.2.3 Fee Tail………………………………………………………15
1.3.2.4 Life Estate……………………………………………………15
1.4 Estates Less Than Freehold (Leasehold or Term of Years)…16
1.5 Estates in Possession, Remainder and Reversion – successive interests
in Land………………………………………………………………17
1.5.1 Future Interests and the Trust Restriction Act……….18
1.5.1.2 The Trust Restriction Act……………………………….......20
1.6 Is There an Equivalent of The Doctrine of Tenure Under Customary
Tenure in Zambia?.................................................................24
1.7 Summary…………………………………28
CHAPTER 2
OWNERSHIP OF LAND AND ITS LIMITS
2.0 Introduction……………………………………………….30
2.1 The Concept of Ownership……………………………….30

2.2 Ownership at Common Law…………………………….31
2.3 Common Law Limitations or Restrictions on Ownership…..31
2.3.1 Liability in Tort………………………………………….31
2.3.2 Gold and Silver…………………………………………..31
2.3.3 Treasure Trove…………………………………………..32
2.3.4 Wild Animals…………………………………………...32
2.3.5 Water Rights……………………………………………..32

2.3.6 Air Space…………………………………………………32
2.4 Statutory Limitations on ‘Ownership’, Use and Enjoyment of Land in
Zambia…………………………………………………………34
2.5 Lands Act………………………………………………….34
2.4.2 Minerals –Lands Act and Mines and Minerals Act…34
2.4.3 Water Act……………………………………………….35
2.4.4 The Town and Country Planning Act………………...37
2.4.5 The Public Health Act (Building Regulations)……….37
2.4.6 The Aviation Act………………………………………..37
2.4.7 Zambia Wildlife Act - Ownership of Wild Animals…38
2.4.8 Protection of Tenants – The Rent Act and Landlord and Tenant (Business
Premises) Act…………………………………………….39
2.4.9 The Land Acquisition Act- Compulsory Acquisition of Land….40
2.5 Case Law……………………………………………………40
2.6 Summary ……………………………….42
CHAPTER 3
FIXTURES
3.0 Introduction……………………………………………….43
3.1 Fixture or Fitting?.................................................................43
3.2 Tests for Determining Whether a Chattel Has Become a Fixture….43
3.2.1 The Degree of Annexation……………………………..44
3.2.2 The Purpose of Annexation…………………………….44
3.3 Common Law Exceptions…………………………………45
3.4 Case Law…………………………………………………….46
3.5 Summary………………………………..51
CHAPTER 4
CO - OWNERSHIP – CONCURRENT INTERESTS IN LAND
4.0 Introduction………………………………………………….52
4.1 Types of Co – Ownership…………………………………..52
4.1.1 Joint Tenancy………………………………………………52
4.1.2 The Right of Survivorship (Jus Accrescendi)…………….52
4.1.3 The Four Unities ………………………………………….52
4.1.3.1 Unity of Possession……………………………………..53
4.1.3.2 The Unity of Interest……………………………………53
4.1.3.3 The Unity of Title ………………………………………53
4.1.3.4 The Unity of Time………………………………………53
4.2 Tenancy in Common………………………………………..53
4.3 Co-Parcenary and Tenancy By Entireties………………....54
4.4 Provisions of the Lands and Deeds Registry Relating to
Co – Ownership……………………………………………...54
4.5 Case Law…………………………………………………….55
4.6 Summary ………………………………62
CHAPTER 5
LEASES AND LICENSES
5.0 Introduction………………………………………………..…63
5.1 The Essential Characteristics of a Lease…………………….63
5.1.1 Certainty of Duration………………………………………63
5.1.2 Exclusive Possession………………………………………64
5.2 Types of Tenancies………………………………………….65
5.2.1 Tenancy at will………………………………………………65
5.2.2 Tenancy at Sufferance………………………………………65
5.2.3 Periodic Tenancy……………………………………………65
5.2.4 A Lease or Tenancy For A Fixed Period…………………66
5.2.5 Tenancy By Estoppel……………………………………….66
5.3 Implied Obligation of Landlord and Tenant…………….66
5.3.1 Covenant for Quite Enjoyment…………………………….66
5.3.2 Not to Derogate From the Grant…………………………..67
5.3.3 Repair and Fitness for Habitation…………………………67
5.4 Implied Obligations and Rights of A Tenant……………..67
5.5 Landlord and Tenant’s Remedies for breach of Covenants..68
5.6 Licences…………………………………………………………68
5.6.1 Bare Licence…………………………………………………68
5.6.2 Contractual Licence…………………………………………68
5.6.3 Licences Protected by Estoppel……………………………7o
5.6.4 Licences Coupled With A Grant Or Interest…………….71
5.7 Case Law………………………………………………………71
5.8 Summary …………………………………100
CHAPTER 6
MORTGAGES
6.0 Introduction……………………………………………………101
6.1 The Nature of a Mortgage as a Contract and as an Interest in 101Land…..
6.2 Types of Mortgages……………………………………………102
6.2.1 Legal Mortgage………………………………………………..102
6.2.2 Equitable Mortgage……………………………………………102
6.3 The Rights of The Mortgagor…………………………………..103
6.3.1 The Contractual Right To Redeem…………………………103
6.3.2 The Equitable Right To Redeem……………………………..103
6.3.3 The Equity of Redemption…………………………………..104
6.3.4 Equitable Principles Applicable To Mortgage Transactions…104….
6.3.4.1 Exclusion of The Right To Redeem………………………..105
6.3.4.2 Postponement of The Right To Redeem………………….106
6.3.4.3 Collateral Advantages………………………………………106
6.3.5 Rights of Mortgagee……………………………………..107
6.3.6 Sale………………………………………………………………107
6.3.7 Foreclosure……………………………………………………..108
6.3.8 Possession……………………………………………………….109
6.3.9 Appointment of Receiver……………………………………..109
6.3.10 To Sue For Money After The Date Fixed For Payment……109
6.4 Discharge of Mortgages………………………………………….109
6.5 Case Law………………………………………………………….110
6.6 Summary …………………..……………………………………..127
CHAPTER SEVEN
EASEMENTS AND PROFITS
7.0 Introduction………………………………………………………128
7.1 The Nature of Easements is Interests in Land…………………128
7.2 The Essential Characteristics of an Easement………………….129
7.2.1 There Must be a Dorminant and Servient Tenement…………129
7.2.2 The Dominant and Servient Tenement must not be Owned and
Occupied by The Same Person………………………………..129
7.2.3 The Easement must Accommodate (Benefit) the Dominant
Tenement……………………………………………………….130
7.2.4 The Easement must be Capable of Forming the Subject Matter of the
Grant……………………………………………………………….131
7.3 Acquisition of Easements and Profits…………………………….132
7.3.1 Express Grant or Reservation………………………………………132
7.3.2 Statute…………………………………………………………………132
7.3.3 Presumed Grant or Prescription……………………………………132
7.3.3.1 The Prescription Act……………………………………………….134
7.4 Recording of Memorial of Easement in a Certificate of Title………134
7.5 Case Law………………………………………………………………...135
7.6 Summary…………………………………………...145
CHAPTER 8
LEGAL AND EQUITABLE INTERESTS IN LAND - THE DOCTRINE OF
NOTICE.
8.0 Introduction………………………………………………………………146
8.1 Background to Legal and Equitable Interests…………………………146
8.2 Distinction between Legal and Equitable Interest or Rights…………147
8.3 The Equitable Doctrine of Notice………………………………………148
8.4 Case Law………………………………………………………………….150
8.5 Summary………………………………………………159
CHAPTER 9
TRANSMISSION OF TITLE TO LAND – STATUTE OF FRAUDS 1677
AND THE EQUITABLE DOCTRINE OF PART PERFORMANCE
9.0 Introduction……………………………………………………………….160
9.1 Statute of Frauds, 1677……………………………………………………160
9.2 Intervention of Equity – The Equitable Doctrine of Part Performance…163
9.3 Acts of Part Performance…………………………………………………165
9.4 Case law…………………………………………………………………….167
9.5 Summary…………………………………………………189
CHAPTER 10
THE DOCTRINE IN WALSH VS LONSDALE
10.0 Introduction-Need For A Deed To Transfer An Interest
In Land at Law…………………………………………………………….190
10.1 Intervention of Equity……………………………………………………..190
10.2 Effect of Walsh v Lonsdale in Equity ...…………………………............192
10.3 Case law……………………………………………………………………..193
10.4 Summary …………………………………………..………203
CHAPTER 11
HISTORICAL BACKGROUND OF THE LAND TENURE SYSTEM IN
ZAMBIA
11.0 Introduction……………………………………………………………….204
11.1 The Lewanika Concessions – North Western Rhodesia……………….204
11.2 The North Eastern Rhodesia Concessions………………………………205
11.3 BSA Co’s Claims To Ownership Of Land………………………………..205
11.4 Northern Rhodesia Order in Council, 1911……………………………..211
11.5 Northern Rhodesia Order In Council, 1924……………………………..212
11.6 The Creation of Reserves And Crown Lands: Northern Rhodesia
(Crown Lands And Natives Reserves) Order In Council, 1928…….213
11.7 The Creation of Trustland Reserves – The Northern Rhodesia (Native
Trustland) Order In Council 1947…………………………………….215
11.8 Northen Rhodesia (Gwembe District) Order In Council, 1959…….216
11.9 Zambia Independence Order, 1964……………………………………216
11.10 Zambia (Stateland And Reserves) Order 1964, Zambia (Trustland) Order
1964, Zambian (Gwembe District) Order, 1964……………………216
11.11 Land Reforms In The First Republic-1964-1972………………….217
11.12 Problems Created By Absent Land Lords…………………………219
11.13 The Western Province (Miscellaneous Provisions) Act…………….219
11.14 Summary………………………………………...221
CHAPTER 12
LAND REFORMS IN THE SECOND REPUBLIC – THE LAND
(CONVERSION OF TITLES) ACT.
12.0 Introduction………………………………………………………...223
12.1 Land Reforms Announced By President Kaunda………………224
12.2 Theoretical Justification of The 1975 Land Reforms……………224
12.3 Salient Provisions of the Land (Conversion of Titles) Act…………225
12.3.1 Object of the Act…………………………………………………..226
12.3.2 Section 4-Vesting Clause – State Ownership of All Land in Zambia…226
12.3.3 Section 5 – Conversion of Freeholds into Leaseholds………....226
12.4 Bare Land - No Value……………………………………………….227
12.5 Section 13 – Presidential Consent for All Transactions or Delays In
Land……………………………………………………………………..228
12.6 The 1985 Amendments To The Land (Conversion of Titles) Act. Restriction
of Alienation of Land To Non Zambians……………………………..229
12.7 Critique of the Land (Conversion of Titles) Act………………….231
12.8 Case law…………………………………………………….…………232
12.9 Summary…………………………………………………242
CHAPTER 13
LAND REFORMS IN THE THIRD REPUBLIC-THE LANDS ACT, 1995
13.0 Introduction……………….…………………………………………….243
13.1 Objectives of the Lands Act……………………………………………244
13.2 Principal Features of the Act…………………………………………..245
13.2.1 Definitions………………………………………………………………245
13.2.2 Vesting of Land in The President, Powers To Alienate Land And
Administration of Land……………………………………………..245
13.2.3 Conditions on Alienation of Land and Presidential Consent…….248
13.2.4 Customary Holdings to Be Recognised and to Continue…………249
13.2.5 Conversion of Customary Tenure into Leasehold tenure.…………249
13.2.6 Prohibition of Unauthorised Occupation of Land…………………..250
13.2.6.1 Renewal of Leases…………...………………………………………..250
13.2.7 Re-Entry………………………………………………………………....251
13.2.8 The Land Development Fund…………………………………………251
13.2.9 Dispute Settlement: The Lands Tribunal…………………………252
13.3 Case Law……………………………………………………………….253
13.4 Proposed Constitutional Enactments Relating to Land- The Mung’omba
Draft Constitution…………………………………………………...274
13.4.1 Introduction…………………………………………………………274
13.4.2 Vesting of Title………………………………………………………275
13.4.3 Access, Acquisition and Ownership………………………………276
13.4.4 Duration of Tenure…………………………………………………278
13.4.5 Lands Tribunal- Composition and Jurisdiction……………………280
13.5 Summary……………………………………………………………….287
CHAPTER 14
COMPULSORY ACQUISITION OF PROPERTY IN ZAMBIA
14.0 Introduction…………………………………………………………291
14.1 Brief Historical Back Ground to Compulsory Acquisition of Property in
Zambia………………………………………………………………..292
14.1.2 The Public Lands Acquisition Ordinance………………………292
14.1.3 The Independence Constitution as Regards Property
Rights………………………………………………………………293
14.1.4 The 1969 Referendum…………………………………………….294
14.2 Constitutional Basis to Compulsory Acquisition of Property in
Zambia………………………………………………………………296
14.3 The Legal Frame work for Compulsory Acquisition of Property in
Zambia – The Land Acquisition Act, 1970……………………….298
14.4 Salient Provisions of the Act………………………………………298
14.5 Case Law………………………………………………………………..302
14.6 Summary……………………….………………………………………..317
CHAPTER 15
PROTECTION OF TENANTS OF RESIDENTIAL PREMISES IN ZAMBIA,
-THE RENT ACT
15.0 Introduction…………………………………………………………318
15.1 Brief Background to Legislation relating to Protection of Tenants in
Zambia……………………………………………………………….319
15.2 Objectives of the Rent Act………………………………………....323
15.3 Scope of Application of the Act…………………………………..324
15.4 Powers of the Court……………………………………………………324
15.5 Fixation of Standard Rent and Restriction on Increase of Rent…325
15.6 Penalty for Demanding or Accepting Excess Rent and Permitted
Increases in Rent…………………………………………………..325
15.7 Restrictions on Right to Possession and on Levying of Distress For
Rent…………………………………………………………………325
15.8 Restrictions On Premiums………………………………………...326
15.9 Repairs……………………………………………………………...327
15.10 Restriction on Right to Assign or Sublet Premises and Subletting by
Tenant………………………………………………………………327
15.11 Amendment Act (No.12) Of 1974 (Local Authorities and National
Housing Authority)……………………………………………..328
15.12 Enforcement of the Act…………………………………………329
15.13 Evaluation of the Act……………………………………………329
15.14 Case law………………………………………………………….330
15.15 Summary…………………………………………………………337
CHAPTER 16
PROTECTION OF TENANTS OF BUSINESS PREMISES IN ZAMBIA-
THE LANDLORD AND TENANT (BUSINESS PREMISES) ACT
16.0 Introduction………………………………………………………338
16.1 Scope of Application…………………………………………….339
16.2 Definition of ‘Lease’, ‘Tenancy’, and ‘Business’………………340
16.3 Security of Tenure under the Act………………………………341
16.4 Tenancy may come to an End by Notice to Quit Given by Tenant,
Surrender and Forfeiture………………………………………..341
16.5 Termination of Tenancy by Landlord…………………………341
16.6 Tenant’s Request for a New Tenancy…………………………342
16.7 Grounds of Opposition to the grant of a new Tenancy available to the
Landlord…………………………………………………………343
16.8 Compensation where order for New Tenancy Precluded on certain
Grounds…………………………………………………………...345
16.9 Restrictions on Agreements Excluding Provisions of Acts……345
16.10 Determination of Rent by Court in Certain Instances……..345
16.11 Distress for Rent………………………………………………..347
16.12 Case Law………………………………………………………..349
16.13 Summary…………………….………………………………….375
CHAPTER 17
REGISTRATION OF INTERESTS IN LAND-THE LANDS AND
DEEDS REGISTRY ACT
17.0 Introduction……………………………………………………..376
17.1 Objectives of the Lands and Deeds Registry Act…………….376
17.2 Establishment of the Deeds Registry……………………………376
17.3 Documents required to be registered and times within which
Registration must be Effected………………………………….377
17.4 Documents to be Void for want of Registration……………..378
17.5 Optional Registration of Documents not Required to be Registered,
and Registers to be kept…………………………………………..379
17.6 Correction of Errors or Omissions in Register………………...380
17.7 Registration not to Cure Defect…………………………………380
17.8 Certificate of Title required before Registration of an Interest in
Land……………………………………………………………........380
17.9 Effect of Issue of Provisional and Certificate of Title………………380
17.10 Restriction on Ejectment after Issue Certificate of Title and Protection
Against Adverse Possession…………………………………….…..382
17.11 Certificate to be evidence of Proprietorship……………………….383
17.12 Caveats……………………………………………………………..…..383
17.13 Appeals to Court from Decisions of Registrar………………….….385
17.14 Case law………………………………………………………………..386
17.15 Summary………………………..……………………………………..409
CHAPTER 18
STATUTORY CONTROL OF LAND USE IN ZAMBIA
18.0 Introduction……………………………………………………………410
18.1 Objectives of the Town and Country Planning Act………………..411
18.2 Application of the Act…………………………………………………411
18.3 Disagreement between Republic and Planning authority………...412
18.4 Appointment of Planning Authorities………………………………412
18.5 Settlement of Disputes – The Town and Country Planning Tribunal….412
18.6 Structure Plans or Local Plans………………………………………414
18.7 Control of Development and Subdivison of Land- Planning
Permission………………………………………………………………418
18.8 Additional Provisions for Appeal to the Tribunal…………………421
18.9 The Revocation and Modification of Planning Permission By
Minister……………………………………………………………..422
18.10 Enforcement of Planning Control- Enforcement Notice…………….…423
18.11 Compensation for Refusal or Conditional Grant of Planning
Permission………………………………………………………………….424
18.12 Acquisition of Land………………………………………………...425
18.13 Power to hold or cause the holding of Public Inquiries………….…425
18.14 Building Control- Local Government Act and Public Health …..426
18.14.1 The Local Government Act………………………………………426
18.14.2 The Public Health Act- The Public Health (Building)
Regulations……………………………………………………….427
18.15 Case law……………………………………………………………..429
18.16 Evaluation of the Town and Planning Legislation ……………..446
18.17 Summary………………………….…………………………………448
CHAPTER 19
THE INFORMAL LAND TENURE IN ZAMBIA – THE HOUSING
(STATUTORY AND IMPROVEMENT AREAS) ACT.
19.0 Introduction……………………………………………………..…449
19.1 The Housing (Statutory and Improvement Areas) Act……….450
19.2 Salient Provisions of the Housing (Statutory and Improvement Areas)
Act……………………………………………………………….....451
19.2.1 Statutory Housing Areas (Site and Service Schemes)……….451
19.2.2 Improvement Areas…………………………………………….452
19.2.3 Construction of Houses in Statutory Areas………………….452
19.2.4 No Dealing with land without the Council’s Consent………..454
19.2.5 Non-Application of Certain Statutes in Statutory Housing and
Improvement Areas…………………………………………….454
19.2.6 Land Belonging to Local Authorities- the Head Lease System….456
19.3 Case Law …………………………………………………………..467
19.4 Summary………………………..………………………………….474
CHAPTER 20
THE AFRICAN CONCEPT OF LAND OWNERSHIP- THE AFRICAN
CUSTOMARY LAND TENURE.
20.0 Introduction………………………………………………………...475
20.1 What is Land Tenure………………………………………………475
20.2 Colonial Views on the Nature of Interests and Rights Under African
Customary Holding……………………………………………….477
20.3 Reaction to Colonial Views……………………………………….480
20.3.1 Communal or Group Ownership of Land………………..….480
20.4 Positions of chiefs under African Customary Tenure…….….485
20.5 Summary……………………………………………………………493
CHATER 21
PROCEDURES ON LAND ALIENATION IN ZAMBIA - LAND
CIRCULAR NO. 1 OF 1985
21.0 Introduction………………………………………………………494
21.1 British Historical Background to land Administration and Alienation in
Zambia…………………………………………………………….496
21.1.1 British South African Company Rule………………………...496
21.1.2 Direct Rule………………………………………………………497
21.2 The Ministry of Lands…………………………………………...500
21.2.1 Lands Department- office of the Commissioner of Lands…500
21.2.2 Lands and Deeds Registry Department – registration of Land and
Interests in Land……………………………………………….502
21.2.1.3 The Survey Department – Surveying and Provision of Diagrams,
Maps and Plans……………………………………………...503
21.3 Local Authorities…………………………………………………507
21.3.1 Land Identification and Preparation of Layout Plans……...508
21.3.2 Selection of Applicants and Allocation of Stands…………..509
21.3.3 Customary Land……………………………………………….512
21.3.4 The Housing ( Statutory and Improvement) Areas…….......515
21.4 The Agricultural Lands Board…………………………………515
21.5 Land Use Planning Section – Ministry of Agriculture………518
21.6 The Ministry of Environment and the Environmental Council of
Zambia…………………………………………………………….519
21.7 Department of Physical Planning and Housing- Ministry of Local
Government and Housing……………………………………...520
21.8 Department of Resettlement-Office of the Vice President……520
21.9 Zambia Wildlife Authority ………………………………………521
21.10 An Appraisal of the Land Delivery System in Zambia……......522
21.11 Positive Trends in Land Delivery System and Administration…..528
21.12 Case Law……………………………………………...……………529
21.13 Summary……………………………..…………………………….537
PREFACE
It is an indubitable fact that there is a dearth of home grown legal literature in

Zambia. In his introduction to ‘Law in Zambia,’ the former Dean of the law
school, Professor Muna Ndulo made these pertinent observations:-
Hitherto there have been several books on various economic,

historical and social aspects of Zambia but there is however a dearth
of legal literature. This has meant that for the most part the study
material that is used in legal education has been almost exclusively
foreign, some of which has relevance to law in Zambia and some
which does not have, except to instruct in general way on particular
legal principles. As a result most lawyers in Zambia think of the
Zambian legal system as primarily an English common law system.
Certainly much statutory law as well has been borrowed from
England and legislative bodies and the courts continue to look first
at what has been done in England and seldom embark on their own
legislative experiments in law. Nowadays however, there is a
growing realization that the country will have to develop a much
greater capacity to deal with its own legal problems. This means
adapting the law to meet Zambian needs.
These observations made more than twenty years ago are still pertinent and
valid even as of today. In the teaching and study of Land Law we have had to
rely heavily on a various sources of materials, notably Megarry’s ‘Manual on the
Law of Real Property’ and Riddal’s Introduction to Land Law. But even these
materials (which are in short supply), are only relevant for the first semester
component of the course which essentially deals with or covers the English
concepts and systems of land law and property. As for the second semester
component of the course, which essentially looks at what I may call the Zambian
land law, there is nothing much in existence save perhaps to say professor
Mvunga’s two books, viz; The Colonial Foundations of Zambia’s Land Tenure
Systems, Land Law and Policy in Zambia. But even then these materials are limited
in scope as they were only intended to cover certain aspects of the subject matter.
This work is more than a case book in the traditional or strict sense. A case book
is first and foremost a teaching tool. A case book is generally intended to
supplement a textbook, but not to replace it. When I embarked on this work I
considered that since there is a dearth of home grown legal literature on land law
to which a case book would have supplemented, I had to deviate from the strict
casebook style by trying to produce a work which would neither be a textbook
nor a case book, but an amalgam or hybrid of the two. The approach taken in this
work is therefore to provide texts, materials and cases as well as commentaries.
This approach, was undertaken in order to partially fill the yawning void of legal
literature on land law in Zambia. I have attempted to write a work that is, in
terms of the broad subject matter, all embracing because that appears to me to be
the need.
On the more substantive side, one of the challenges I faced was to decide what
cases to include and what cases to leave out. I have generally acted on the
assumption that it is better to have as many cases as possible, rather than a few.
Of course in adopting this approach the paramount consideration has always
been relevance. I have based my general exposition on the general consensus of
standard authoritative opinion of leading writers and of course the considered
Judgments of both the courts of Zambia and England. I have quoted verbatim
and amply key provisions of various statutes so that the work can be used for
reference, thereby making it, to some degree, self-contained.
I have attempted to cover most of the major decisions on the law of real property
or land law made by the courts both in Zambia and England. The inclusion of
some English decisions especially in part 1 of the book was simply unavoidable
considering our common law background or heritage. Quite a number of our
statutory laws or enactments, and this includes those relating to land law, have
either there textual roots from England or have their origin in the colonial era.
Even after our independence, we have generally continued to look first at what
has been done in England. This applies also to our courts that have continued to
place primary reliance on cases decided in England. Whilst the courts are not
bound by English decisions, they have continued to defer to English decisions
and/or authorities.
This work is divided into two parts. Part one mainly deals with what I may call
the English concepts and terminologies of land law. Part two of the book
essentially deals with what I may call the “Zambian land law”. This dichotomy
or division of the work essentially corresponds to the course contents of the two
semester system that the law school, has for sometime now adopted. I have
provided an introductory section to both parts giving an overview of the
contents of each segment. To facilitate the work of recapitulation, a summary is
given at the end of each chapter. It is hoped that both the teaching and learning
of land law will now be made easier and enjoyable.
REFERENCES
Books
Blundell, L.A and V.G Wellings. Woodfall, Landlord and Tenant: Vol. 2.
London: Sweet & Maxwell, 1999
Burn, B.H. Cheshire’s Modern Real Property .9th ed. London Butterworths,1986
Chitty on Contracts, General Principles, Vol. 1. London: Sweet & Maxwell,

1999
Dale, P. and J. McLaughlin. Land Administration. Oxford: Oxford University

Press, 1999
Dias, R. W. M. Jurisprudence. 5th edn. London: Butterworths, 1985
Dixon, Martin. Land law. London: Cavendish Publishing Limited, 1994
Elias, T. Olawale. The Nature of African Customary Law. Manchester:

Manchester University Press,1956
Fitzgerald, P.J. Salmond on Jurisprudence, 7th edn. London: Sweet & Maxwell,
1966
Furmston, M.P. Cheshire, Fifoot and Furmston’s Law of Contract. 11th edn.
Oxford: Butterworths, 1986
Harchard, John and Muna Ndulo, The Law of Evidence in Zambia, Cases and
Materials, Lusaka: Multimedia, 1985
Hayton, David. J. Megarry’s Manual of the Law of Real Property. 6th edn. London:
ELBS, 1982
Howarth, William. Nutshells: Land law .3rd edn. London: Sweet & Maxwell,
1994.
Hughes, Lotte. Moving the Maasai: A colonial Misadventure. New York:

Palgrave Macmillan, 2006
Kenneth K.D, Humanism in Zambia and a guide to its Implementation, Part Two
Lusaka: Government Printer, 1974
Kenyatta, Jomo. Facing Mount Kenya. Nairobi: Kenway Publications East
African Educational Publishers Limited,1938
Knauder, Stephanie. Shacks and Mansions: An Analysis on the Integrated Housing

Policy in Zambia. Lusaka, Multimedia Publications, 1982
Maudsley and Burn: RH Maudsley and EH Burn, Land law Cases and Materials.
5th edn. London: Butterworths, 1986
Megarry R.E and H.W.R Wade .The Law of Real Property,4th edn. London:
Sweet & Maxwell, 1975
Meek C.K. Land Law and Custom in The Colonies, 2nd edn. London: Frank Cass
& Co. 1968
Moore, Victor. A Practical Approach to Planning Law. 4th edn. London:

Blackstone Press, 1987
Mvunga, p. Mphanza. Land law and Policy in Zambia. Gweru: Mambo Press,
1982
Mvunga, P. Mphanza. The Colonial Foundations of Zambia’s Land Tenure

Systems. Lusaka: Neczam Zambia Limited, 1980
Ndulo, Muna. Mining Rights in Zambia. Lusaka: Kenneth Kaunda Foundation,

1987
Ndulo, Muna.(ed). Law in Zambia. East African Publishing House

Limited,1984
Pollock, F (sir), Jurisprudence and legal essays, London: Martin Press,1961
Ralph, Leigh. Coote’s Treaties on the Law of Mortgages. 9th ed. Vol. 1 London
Stevens and Sons Ltd. 1977
Ridall, J.G. Introduction to Land law. 4th edn. London: Butterworths, 1988
Roth, Michael (ed). Land Tenure, Land Markets, and Institutional Transformation
in Zambia. Wisconsin: University of Wisconsin-Madison, 1994
Walker, David .M. The Oxford Companion to Law, Oxford: Clarendon Press,
1980.
Journal Articles.
Harrison, C. Dunning. Law and Economic Development In Africa in The Law of

Eminent Domain in Columbia Law Review. Volume 68. No.7 1968
James, R. W. Land Tenure Systems in Developing Countries in Eastern Africa

Law Review. 1976.
James, R.W. ‘ Mulungushi Land Reform Proposals Zambia,’ in 9 Eastern Africa

Law Review 124, 1972
Kaunda, M. ‘Application of The Land (Conversion of Titles) Act to Customary

Land: A Critique of the Judgments in Datson Siulapwa V. Faless Namusika,’ in
Zambia Law Journal Volume 19 P 62
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,’ in Zambia Law Journal. Vol. 21-24 1989-92
Kwamena Bentsi-Enchill,’ Do African Systems of Land Tenure Require a Special

Terminology,’ in Journal of African Law, Vol. 9 No. 2, 1965
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.’ in the Zambia Law Journal, Vol.15. 1983
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 number 2.
Mpaisha, J. Chisepo(ed). African Social Research Journal. Number 36, 1983
Mudenda, Fredrick. ‘The Zimbabwean land question – a land tenure system

moulded by conflict of interest’ in The Human Rights Observer, Volume 6,
December 2001
Mugabe, Robert. Zimbabwe Land Reform Programme Paper. June 2001
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
Mulimbwa, A. C. ‘Land Policy and Economic Development in Zambia’, in Zambia

Law Journal Special Edition. 1998
Okon, E. ‘Land law as an Instrument of Social Change’, in Zambia Law Journal,
Vol. 17 1985.
White, C.M.N, Factors Determining the Concept of African Land Tenure Systems In
Northern Rhodesia, in African Agrarian systems “, 1963
Reports and Other Documents
Muyakwa, S.L, M.M Munalula and F.S Mudenda. Research on the Impact of the
Lands Act 1995 on the Livelihoods of the poor and peasants in Zambia. Catholic
Commission for Peace and Justice, 2003
Ministry of Lands, Circular No. 1 of 1985
Ministry of Lands, Circular No. LA/11202 1992
Daily Parliamentary Debates, Thursday, 25th November 1971. 28c.
Draft Constitution of the Republic of Zambia, 2005
GRZ, Ministry of Development Planning and National Guidance, 2nd National Devt
Plan 1972-76
Hansard No. 16g, Daily Hansard, Wednesday. 16th October, 1968
Hansard No. 24(B), Wednesday, 9th December (1970)
Government of the Republic of Zambia, Interim Report of the Constitution

Review Commission, Lusaka: Secretariat, Constitution Review Commission,
2005
Kaunda, K. D., ‘The Watershed Speech’ to the National Council of the United
National Independence Party, Mulungushi Hall, Lusaka. June 30- July 3, 1975.
Report of the Commission of Inquiry into land Matters in the Southern
Province, 1982,
Manifesto for the Movement for the Multi-party Democracy,1991
Matibini, P.The urban Housing Problem for low-income Groups with special
reference to the city of Lusaka: A Socio-legal perspective, LLM Thesis, University of
Zambia, 1989(unpublished)
Ministry of Lands Objectives, Ministry of Lands Annual Report 2002
Ministry of Lands Annual Report, Ministry of Lands, Lusaka, 2004

Parliamentary Debates official verbatim report of the fourth session of the
Second National Assembly. 1972
Report of the Land Commission. Lusaka: Government Printer, 1967
Report on the Commission of Inquiry into Land Matters in the Southern Province.
1982
Strategic Planning and Management of Land Administration and

Geographical Information and Organisations.12-23 May, 2003 in Gavle,
Sweden. Study Literature. Swedesurvey
Swedish International Development Agency, Informal Land Tenure in Lusaka,

Zambia. 1998
REFERENCES
Books
Blundell, L.A and V.G Wellings. Woodfall, Landlord and Tenant: Vol. 2.
London: Sweet & Maxwell, 1999
Burn, B.H. Cheshire’s Modern Real Property .9th ed. London Butterworths,1986
Chitty on Contracts, General Principles, Vol. 1. London: Sweet & Maxwell,

1999
Dale, P. and J. McLaughlin. Land Administration. Oxford: Oxford University

Press, 1999
Dias, R. W. M. Jurisprudence. 5th edn. London: Butterworths, 1985
Dixon, Martin. Land law. London: Cavendish Publishing Limited, 1994
Elias, T. Olawale. The Nature of African Customary Law. Manchester:

Manchester University Press,1956
Fitzgerald, P.J. Salmond on Jurisprudence, 7th edn. London: Sweet & Maxwell,
1966
Furmston, M.P. Cheshire, Fifoot and Furmston’s Law of Contract. 11th edn.
Oxford: Butterworths, 1986
Harchard, John and Muna Ndulo, The Law of Evidence in Zambia, Cases and
Materials, Lusaka: Multimedia, 1985
Hayton, David. J. Megarry’s Manual of the Law of Real Property. 6th edn. London:
ELBS, 1982
Howarth, William. Nutshells: Land law .3rd edn. London: Sweet & Maxwell,
1994.
Hughes, Lotte. Moving the Maasai: A colonial Misadventure. New York:

Palgrave Macmillan, 2006
Kenneth K.D, Humanism in Zambia and a guide to its Implementation, Part Two
Lusaka: Government Printer, 1974
Kenyatta, Jomo. Facing Mount Kenya. Nairobi: Kenway Publications East
African Educational Publishers Limited,1938
Knauder, Stephanie. Shacks and Mansions: An Analysis on the Integrated Housing

Policy in Zambia. Lusaka, Multimedia Publications, 1982
Maudsley and Burn: RH Maudsley and EH Burn, Land law Cases and Materials.
5th edn. London: Butterworths, 1986
Megarry R.E and H.W.R Wade .The Law of Real Property,4th edn. London:
Sweet & Maxwell, 1975
Meek C.K. Land Law and Custom in The Colonies, 2nd edn. London: Frank Cass
& Co. 1968
Moore, Victor. A Practical Approach to Planning Law. 4th edn. London:

Blackstone Press, 1987
Mvunga, p. Mphanza. Land law and Policy in Zambia. Gweru: Mambo Press,
1982
Mvunga, P. Mphanza. The Colonial Foundations of Zambia’s Land Tenure

Systems. Lusaka: Neczam Zambia Limited, 1980
Ndulo, Muna. Mining Rights in Zambia. Lusaka: Kenneth Kaunda Foundation,

1987
Ndulo, Muna.(ed). Law in Zambia. East African Publishing House

Limited,1984
Pollock, F (sir), Jurisprudence and legal essays, London: Martin Press,1961
Ralph, Leigh. Coote’s Treaties on the Law of Mortgages. 9th ed. Vol. 1 London
Stevens and Sons Ltd. 1977
Ridall, J.G. Introduction to Land law. 4th edn. London: Butterworths, 1988
Roth, Michael (ed). Land Tenure, Land Markets, and Institutional Transformation
in Zambia. Wisconsin: University of Wisconsin-Madison, 1994
Walker, David .M. The Oxford Companion to Law, Oxford: Clarendon Press,
1980.
Journal Articles.
Harrison, C. Dunning. Law and Economic Development In Africa in The Law of

Eminent Domain in Columbia Law Review. Volume 68. No.7 1968
James, R. W. Land Tenure Systems in Developing Countries in Eastern Africa

Law Review. 1976.
James, R.W. ‘ Mulungushi Land Reform Proposals Zambia,’ in 9 Eastern Africa

Law Review 124, 1972
Kaunda, M. ‘Application of The Land (Conversion of Titles) Act to Customary

Land: A Critique of the Judgments in Datson Siulapwa V. Faless Namusika,’ in
Zambia Law Journal Volume 19 P 62
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,’ in Zambia Law Journal. Vol. 21-24 1989-92
Kwamena Bentsi-Enchill,’ Do African Systems of Land Tenure Require a Special

Terminology,’ in Journal of African Law, Vol. 9 No. 2, 1965
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.’ in the Zambia Law Journal, Vol.15. 1983
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 number 2.
Mpaisha, J. Chisepo(ed). African Social Research Journal. Number 36, 1983
Mudenda, Fredrick. ‘The Zimbabwean land question – a land tenure system

moulded by conflict of interest’ in The Human Rights Observer, Volume 6,
December 2001
Mugabe, Robert. Zimbabwe Land Reform Programme Paper. June 2001
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
Mulimbwa, A. C. ‘Land Policy and Economic Development in Zambia’, in Zambia

Law Journal Special Edition. 1998
Okon, E. ‘Land law as an Instrument of Social Change’, in Zambia Law Journal,
Vol. 17 1985.
White, C.M.N, Factors Determining the Concept of African Land Tenure Systems In
Northern Rhodesia, in African Agrarian systems “, 1963
Reports and Other Documents
Muyakwa, S.L, M.M Munalula and F.S Mudenda. Research on the Impact of the
Lands Act 1995 on the Livelihoods of the poor and peasants in Zambia. Catholic
Commission for Peace and Justice, 2003
Ministry of Lands, Circular No. 1 of 1985
Ministry of Lands, Circular No. LA/11202 1992
Daily Parliamentary Debates, Thursday, 25th November 1971. 28c.
Draft Constitution of the Republic of Zambia, 2005
GRZ, Ministry of Development Planning and National Guidance, 2nd National Devt
Plan 1972-76
Hansard No. 16g, Daily Hansard, Wednesday. 16th October, 1968
Hansard No. 24(B), Wednesday, 9th December (1970)
Government of the Republic of Zambia, Interim Report of the Constitution

Review Commission, Lusaka: Secretariat, Constitution Review Commission,
2005
Kaunda, K. D., ‘The Watershed Speech’ to the National Council of the United
National Independence Party, Mulungushi Hall, Lusaka. June 30- July 3, 1975.
Report of the Commission of Inquiry into land Matters in the Southern
Province, 1982,
Manifesto for the Movement for the Multi-party Democracy,1991
Matibini, P.The urban Housing Problem for low-income Groups with special
reference to the city of Lusaka: A Socio-legal perspective, LLM Thesis, University of
Zambia, 1989(unpublished)
Ministry of Lands Objectives, Ministry of Lands Annual Report 2002
Ministry of Lands Annual Report, Ministry of Lands, Lusaka, 2004

Parliamentary Debates official verbatim report of the fourth session of the
Second National Assembly. 1972
Report of the Land Commission. Lusaka: Government Printer, 1967
Report on the Commission of Inquiry into Land Matters in the Southern Province.
1982
Strategic Planning and Management of Land Administration and

Geographical Information and Organisations.12-23 May, 2003 in Gavle,
Sweden. Study Literature. Swedesurvey
Swedish International Development Agency, Informal Land Tenure in Lusaka,

Zambia. 1998
Ordinances
Day Nurseries Ordinance of 1957

Lands and Deeds Registry (Amendment) Ordinance of 1944
Lands and Deeds Registry Ordinance of 1914
Lands and Deeds Registry Ordinance of 1949
Markets Ordinance
North East Rhodesia Order in Council of 1889
North West Rhodesia Order in Council of 1889
Northern Rhodesia (Crown Lands and Native Reserves) Order in Council of 1928
Northern Rhodesia (Gwembe District) Order in Council of 1959
Northern Rhodesia (Native Trust land) Order in Council of 1947
Northern Rhodesia (Tanganyika District) Order in Council of 1929
Northern Rhodesia Order in Council of 1911
Public Lands Acquisition Ordinance of 1929
Town and Country Planning (Amendment) Ordinance
Town and Country Planning Development Order
Town and Country Planning Ordinance of 1962
Town Planning Ordinance
Zambia (Gwembe District) Orders 1947
Zambia (State Lands and Reserves) Order of 1964
Zambia (Trustland) Orders of 1947
Statutes
Agricultural Lands Act, Chapter 187 of the Laws of Zambia
Aviation Act, Chapter 444 of the Laws of Zambia
Bills of Exchange (Time of Noting Act) [ English]
British Acts Extension Act, Chapter 11 of the Laws of Zambia
Common Leasehold Scheme Act, Chapter 208 of the Laws of Zambia
Companies Act, Chapter 388 of the Laws of Zambia
Constitution, Chapter 1 of the Laws of Zambia
Constitutional (Amendment) (no.5) of 1969
Conveyancing and law of Property Act of 1881[English]
Conveyancing and Law Property Act of 1881 [English]
Electricity Act, Cap 433 of the Laws of Zambia
England Land Registration Act of 1925 [English]
English Landlord and Tenant Act of 1954 [English]
English Law (Extent of Application) Act, Chapter 10 of the Laws of Zambia
Forgery Act [English]
Gaming Act [English]
High Court Act, Chapter 27 of the Laws of Zambia
Housing Act of 1961
Housing (Statutory and Improvement Areas) Act, Chapter 194 of the Laws of Zambia
Housing Town Planning Act of 1909 [English]
Increase of Rent and Mortgage Interest Act of 1915 [English]
i
Independence Constitution, 1964
Industrial and Provident Societies (amendment) Act
Interpretation and General provision Act, Chapter 2 of the Laws of Zambia
Judicature Act of 1873 [English]
Land (Conversion of Titles) (Amendment No. 2) Act, No. 15 of 1985
Land (Conversion of Titles) Act of 1975
Land (Perpetual Succession) Act, Chapter186 of the Laws of Zambia
Land Acquisition Act, Chapter 189 of the Laws of Zambia
Land Registration Act of 1929
Land Survey Act, Chapter 188 of the Laws of Zambia
Landlord and Tenant (Business Premises) Act, Chapter 193 of the Laws of Zambia
Lands Act, Chapter 184 of the Laws of Zambia
Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia
Larceny Act [English]
Law of distress Amendment Act of 1895
Law of Property Act of 1925 [English]
Law Reform (Enforcement of Contracts) Act [English]
Limitation Act of 1939 [English]
Local Courts Act, Chapter 29 of the Laws of Zambia
Local Government Act, Chapter 281 of the Laws of Zambia
Married Women (maintenance) Act [English]
Married Women’s Property Act of 1882 [English]
Matrimonial Proceedings (Magistrates Courts) Act of 1960 [English]
Mines and Minerals Act, Chapter 213 of the Laws of Zambia
ii
Prescription Act of 1882 [English]
Public Health Act, Chapter 295 of the Laws of Zambia
Public Lands Acquisition Act of 1958
Quia Emptores of 1290 [English]
Rent Act, Chapter 206 of the Laws of Zambia
Rent Amendment Act, (No. 12) of 1974
Rent and Mortgage Interest Restriction (Amendment) Act of 1933
State Proceedings Act, Chapter 71 of the Laws of Zambia
Statute of Frauds of 1677
Statutory Functions Act, Chapter 4 of the Laws of Zambia
Subordinate Court Act, Chapter 28 of the Laws of Zambia
Supreme Court Act, Chapter 25 of the Laws of Zambia
Tanzania – Zambia Railway Act, Chapter 454 of the Laws of Zambia
Tenure Abolition Act of 1660 [English]
Town and Country Planning Act, Chapter 283 of the Laws of Zambia
Water Act, Chapter 198 of the Laws of Zambia
Western Province (Miscellaneous Provisions) Act of 1970
Zambia Tanzania pipeline Act, Chapter 455 of the Laws of Zambia
Zambia Wildlife Act, Number 12 of 1998
iii
Table of Statutory Instruments
Statutory Instrument
Gazette Notice No. 42 of 1992
Land [Development Fund] Regulations Statutory Instrument No. 88 of 1996
Lands Act (The Lands Tribunal) Rules – Statutory Instrument No. 90 of 1996
Lands (Customary Tenure) (Conversion) Regulations
Statutory Instrument No. 89 of 1996
Statutory Instrument 192 of 1996
Statutory Instrument Number 123 of 1974
Statutory Instrument Number 4 of 1989

(Mudenda Land Law

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ACKNOWLEDGEMENTS

I also owe a profound debt of gratitude to professor Melvin Mbao of the

I would also wish to express my profound gratitude to Mr. Lombe Mbalashi,

Foster v Robinson [1950] 2 ALL ER 342………………………………90,91

Hulme v Brigham [1943] 1 ALL ER 204, (1943) 1KB 152 ……………….44

Hunt v Luck (1902) 1 CH 426…….149, 151, 154

Marshall v Nottingham City Corporations, 1960, 1ALL ER 659……………………………….446

Mukelebai v Widmaier Supreme Court Appeal No. 116 of 1995 [Unreported]………..25

Murray Bull & Co Ltd v Murray[1952] 2 ALL ER 1079, [1953] 1 QB 211… 78

Mwangela and Another v Ndola City Council (2000) ZR 131…………268

Naik and Naik Motors Ltd v Chama(1985) ZR 227………………………….235

Namung'andu v Lusaka City Council (1978) ZR 358 ……………………………39.47, 407, 447

National Hotels Development Corporation T/A Fairview v Ebrahim Motala (2002) ZR

Re Broad, Smith v Draegar [1901] 2 Ch. 86. ………………………..335, 387

Re Carne's Settled Estates [1899] 1 Ch 324…………………….90, 91

Wakeham v Mackenzie [1968] 2 All ER 783…….180, 181, 182

Wilkes v Spooner [1911] 2 KB 473……………………….128

AN INTRODUCTION TO LAND LAW IN ZAMBIA

1.0 Introduction - The Nature and Scope of Land Law

Proprietary rights in land are interests in land, whether legal interest or

…‘land law rights’ , even if created by a contract, are capable of

Leases, mortgages, easements and profits are examples of proprietary

1.2 Sources of Land Law in Zambia

The sources of land law in Zambia may be found in statutes enacted by

1.2.1 Statutes Enacted by the Zambian Legislature.

1.2.2 English Common Law

2. Subject to the provisions of the Constitution of Zambia and to

Hatchard and Ndulo have observed that Chapter 11 of the Laws of

For a statute of such fundamental significance, Chapter 4 is

Zambia, being a former colony of England, is a common law jurisdiction.

1.2.3 Principles of Equity

Equity may be defined as that body of law or principles that was

1.2.4 Customary Law

1.2.5 English Statutes

1.2.5.1 English Statutes Applicable to Zambia by Virtue of the English Law

An Act to provide for the extension or application of certain

(i) The Conveyancing Act, 1911;

No action shall be brought by any other person to recover any

Like most other countries formerly tied to England as colonies or

(i) the principle of stare decisis is essential to a hierarchical system of

1.2.5.4 Text Book Writers

1.3 The Two Basic Doctrines of English Land Law

1.3.1 The Doctrine of Tenure

1.3.2 The Doctrine of The Estates

1.3.2.1 Freehold Estates

i Fee Simple Estate

This is the largest estate in terms of duration and is as near to ‘absolute

iii Life Estate

1.4 Estates Less Than Freehold (Leasehold or Term of Years)

The leasehold estate or lease, as we know it today, was originally not

Freehold estates, i.e. the estates held by freehold tenure, are

1.5 Estates in Possession, Remainder and Reversion – successive interests in

(1) The Registered Proprietor of land in respect of which a

(a) make a transfer to himself jointly with any other person or

(2) In case of the limitation of successive interests as aforesaid, the Registrar

“An Act to restrict the creation of settlements, trusts and future

In presenting the Trust Restriction Bill in the National

Mr Speaker, Sir, the primary purpose of this Bill is to prevent

This problem has over the centuries given rise in England to

Section 2 further defines a settlement to mean:-

A minor is defined under the section to mean:-

“a person in being under the age of twenty-one years;”