STUDENT ID: CL1853

COURSE: LAND LAW

PROGRAMME: COMMERCIAL LAW

DUE DATE: 30th SEPTEMBER,2022

LECTURER: NATASHA CHIRWA LUNGU

 Kindly advise them of all the legal interests involved in the case of identifying the
legal issues pertaining.
The legal issues here are:
a. Whether the agreement between the Investors and Mr. Umoyo is a Lease or License.
b. Whether the said Agreement may be revoked by the three potential clients.
c. Whether the Agreement made between the investors and the other company is
enforceable.
LEGAL ISSUE NUMBER 1
a. Whether the agreement between the Investors and Mr. Umoyo is a Lease or
License.
LAWS OR PRINCIPLES
One can take possession of Land either as a Lessee or as a Licensee. The
characteristics of are lease are:
In the case of Lace v. Chandler1 the lack of certainty in duration in a lease will
invalidate the lease.
In Appah v. Parncliffe2 It was held that if exclusive possession is not granted then
what exists is a licence and not a lease. The facts of the case are that rooms were let
out and the conditions were that the owner had access to clean the rooms. One of the
rooms was burgled. When the “tenant” sued the courts held the owner liable as what
was given was a licence and not a lease.
A licence was defined in Thomas v. Sorrel3 as, “permission to use land belonging to
another without such permission would amount to trespass.”
APPLICATION
From the facts, the duration is certain as it states that the agreement is renewable
every five years. The agreement therefore passes the first test of whether it is a lease,
which is that it is that it is for a certain duration.
The agreement must pass the second test of exclusivity in order for it to be considered

1
(1944) KB 368
2
(1964) 1 WLR 1064
3
(1673) Vaugh 300
 a lease. The right to exclusive possession is, “the right to exclude all others from the
premises including the landlord.”4 From the facts, the potential client’s grandfather
had never visited the land only because it was difficult to access and not because he
was prevented by the agreement. What this entails is that the investors were not
granted exclusive possession, but only a licence. They were given the piece of land to
farm on, which is in line with the definition in Thomas v. Sorrel, that is permission
granted to use land which permission if not granted would amount to trespass.
CONCLUSION
Advise your potential clients that the agreement between their grandfather and the
investors for the use of land is a licence as it fails to pass the exclusive possession test
as illustrated in the case of Appah v. Parncliffe.

LEGAL ISSUE NUMBER 2

b. Whether the said Agreement between Mr. Umoyo and the Investors may be
revoked by the three potential clients?
APPLICABLE LAW AND PRINCIPALS
A contractual licence is given under certain terms and valuable consideration is
granted. It also must be noted that a contractual licence is governed by the principles
of Contract Law.
APPLICATION
As stated, a contractual licence is governed by the principles of contract law. In
contract law, an agreement may be discharged as a result of breach of a fundamental
term. In casu there was a breach of terms of the Contract in that:
 The investors were mining when they should have been farming as agreed.
 The investors were building of permanent structures on the property when this
was not agreed.
CONCLUSIONS
Advise the potential clients that the agreement may be terminated as the investors
breached the agreement by mining on the land when they agreement was that they
will be farming. The agreement was further breached by the construction of
permanent structures.

LEGAL ISSUE NUMBER 3

4
Fredrick Mudenda, Land Law (2006, university of Zambia, Lusaka)
 c. Whether the Agreement made between the investors and the other company is
enforceable.
LAW APPLICABLE AND PRINCIPLE
In the case of King v. David Allen and Sons Bill Posting 5 it was held that
contractual licenses are not binding on third parties. This is the general rule, there are
exceptions for instance:
In the case of Errington v. Errington6 the court found a contractual licence binding
on third parties where the consideration was the payment of a mortgage.
Further, in Binions v. Evans7 the Court held that where there is notice of the licence
before the transfer of the property, the licence will be binding on third parties.
And lastly, in Tanner v. Tanner where property was bought for the benefit of a wife
and children by the husband, and the wife had given up her own flat in the promise of
that house the court allowed the licence to be binding on third party when the husband
sold it to another person.
APPLICATION
The facts of the case are that the contract was made between the investors and a third
party. Unless this case is part of the exceptions to the rule, the principle in King v.
David Allen and Sons will apply which is that the contractual licence made between
the investors and the other company is not binding on your clients.
The principle of notice is given to give the potential third party a chance to choose
whether to continue with the agreement or not. There is no such choice for the
potential clients.
CONCLUSION
Advise them that according to King v. David Allen and Sons contractual licenses do
not bind third parties. In casu, the other company is a third party and as such the
potential clients have no legal duty towards them.

1. Advise them on what they are to do from start to finish ensuring that at the end
of the day, the land is in the possession both physically and legally.
Advise them that if they so choose, they may terminate the agreement made between
the investors and their grandfather as the investors have breached the terms of the

5
1916 2 A.C. 54
6
(1952) 1 ALL ER 149
7
(1972) 2 ALL ER 70
 agreement as shown below. They must then give notice to the investors to vacate the
land. If the investors refuse to vacate the Land, they may go to court to obtain and
eviction order.
A letter to the chief must be written explaining that according to the Will, they land is
now theirs to hold as tenants in common. They will then have their names registered
in the chiefs register. Since there is a mortgage, they must apply for conversion from
customary tenure to leasehold tenure so that the land may act as collateral. The
certificate of title will be them holdin the land as tenants in common as provided in
the Will. The process of conversion from customary tenure to leasehold tenure
involves.
2. Advise them on what will happen to some of the legal interest identified with the
aid of case law.
a. Investors – the investors will lose their interest as what they possess is a
contractual licence and they are in breach of the terms of the agreement as they
are mining instead of farming.
b. The company that was given a licence to cut and take the rose wood would lose
that legal interest as firstly, licences are not transferable and secondly once the
land is legally in the hands of the potential clients, the potential clients won’t be
bound by that agreement as held in King v. David and Sons Bill Posting.
c. The Potential clients will become the legal owners, albeit under customary law of
the land and they shall hold it as tenants in common in accordance with the Will.
The potential clients may also commence an action against the investors for
damages.

BIBLIOGRAPHY
Cases

Lace v. Chandler(1944) KB 368

Appah v. Parncliffe (1964) 1 WLR 1064

Thomas v. Sorrel (1673) Vaugh 300

King v. David Allen and Sons (1916) 2 A.C 54

Errington v. Errington (1952) 1 ALL ER 149

Binions v. Evans (1972) 2 ALL ER 70

Tanner v. Tanner (1973) 3 ALL 776

Book

Frederick Mudenda, Land Law (2006, University of Zambia, Lusaka)