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 another 1.
Although as between themselves joint tenants have separate rights, against
everyone else they are in a position of a single owner 2. Each joint tenant owns the
total interest in the land, along with the other joint tenants. The nature of the joint
tenancy as a single title owned by more than one person is reflected in the legal
attributes of a joint tenancy discussed below.

4.1.2 The Right of Survivorship (Jus Accrescendi)

By virtue of the principle of Jus accrescendi , if one tenant dies during the
existence of the joint tenancy, their interest in the joint tenancy automatically
passes to the remaining joint tenant(s). 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
from a tenancy in common. The four unities of a joint tenancy are the unities of
possession, interest, title and time.
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
Dixon,M, supra note 1 at p. 71.

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4.1.3.1 Unity of Possession

This unity applies to all forms of Co- ownership. The unity of possession means
that each joint tenant is entitled to physical possession of the whole of the land 4.
Unity of possession means that there may be no physical division of the land and
no restriction on any joint tenant’s use of each and every part of the land and this
includes the right to participate fully in the fruit of possession, such as receipt of
rents and profits derived from the 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 duration 6. This means that no joint
tenancy is possible between a fee simple owner and a lease holder. Different
qualities of right are inconsistent with the nature of a joint tenancy as a single
title, jointly 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.

(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

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.
10
Ibid.

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 (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
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,
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.

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 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…

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

55
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
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.

56
 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 4 th 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 8 th 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.

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

57
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 2 nd 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
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

58
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.

In the case of George Andries Johannes White Vs. Ronald Westerman 17 , the court stated that where a Party
does not have title to the land he cannot assign it to a third party and that without any assignment in this respect, it is

17
(1983) Z.R. 135.

59
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.

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.

18
(1998) (S.C) ZR 23.

60
 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.

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

61
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.

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