Land Law Group Assignment
Land Law Group Assignment
Land Law Group Assignment
PARTICIPANT NAMES:
MSUNZA KASONDE LLB18213464
ANDRE ABRAHAM LLB18214103
MUTIT KASASE LLB18212375
MUTINTA ELLAH ZUNDUNA LLB18213756
TIMALIZYE MISOLI BILI LLB18212758
MARINA SILEMBO LLB18212606
MAINDA M MBOYANGA LLB18213604
CHIPEGO SIATWAMBO LLB18212223
MODE OF STUDY: FULL TIME
COURSE CODE: L320
COURSE: LAND LAW
LECTURER: MR JOSEPH CHIRWA
TASK: GROUP ASSIGNMENT
DUE DATE: 13TH NOVEMBER 2020
QUESTION ONE
The first issue is whether or not Kiembe had the right to compulsorily acquire the
land without the compensation. The principle of compulsorily acquisition is one
established from the common law principle of eminent domain that provides that
the crown or government has the power to acquire any land in the interest of
public policy. The lands act has a provision under section 3 that provides that all
land is vested in the president. However the act further provides for the steps that
have to be taken in order for the president to acquire land. This is in accordance
with the case of Van Blerk v The Attorney General and Others, the courts
decided that the procedures must be followed for the land to be compulsorily
acquired by the president otherwise the acquisition is invalid This is provided for
under section 5 of the lands act, which states that the president must give
notice of intention to acquire property through the minister. Section 10 of the
lands acquisition act, provides for the compensation payable to land that has
been compulsorily acquired. The section provides that the compensation will be
in accordance with the value of land in question. In relation to the question at
hand the president Kiembe has been vested with power to hold land on behalf of
his people in accordance with section 3 of the lands act. He also has the right
to posses land in accordance with section 3 of the lands acquisition act,
however, his acquisition of land is in the contravention of section 5 of the lands
acquisition act that lays down the requirements for land to be acquired. It can
be seen from the facts that there was no notice served to Mooka. Secondly the
fact that no compensation was to be given contravenes section 10 of lands
acquisition act that explicitly provides for compensation of property acquired by
the president. In conclusion, the compulsory acquisition is invalid. The second
issue is whether or not the president has the power to re-entry. According to
section 13 of the Lands Act the president has the right to re-enter when a lesser
breaches a term or condition of the lease. The section provides that there has to
be a notice of three month given to lessee before the president re enters. It can
be seen that the president does not have the power to re enter but he did not
follow the time frame in the lands act under section 13. I conclusion the re entry
policy exercised by the president is invalid.
QUESTION TWO
(a) Licences and leases
A license was classically defined in Thomas v Sorrel, as a permission to use
land belonging to another, which without such permission would amount to
trespass. It is not an interest in land. There are 4 types of licences. A bare
licence is permission to enter upon and/or use the land, given voluntarily by the
landowner who receives nothing in return. The giving of the licence is gratuitous
in that it is not supported by ‘consideration’ moving from the licensee. 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 happen.
Contractual Licence This arises where a licence is granted under the terms of a
contract and valuable consideration has been given, Contractual licences are
governed by the ordinary rules of the law of contract. Licensor and licensee may
rely on the normal remedies for breach of contract in the event of failure to carry
out its terms. In Winter Garden Theatre London Limited v Millenium
Productions limited, 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, specific performance of a contract for the hire of a hall was granted. In Hurst
v Picture Theatre Limited, 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. In certain cases
contractual licences have been enforced against third parties. In Errington v
Errington, 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, 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.
Licences Protected By Estoppe In Willmont v Barber, 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. 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. At common law such a licence is irrevocable.
A lease is an interest or estate in land of a defined duration. 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. 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. In Lace V
Chandler , a lease for the duration of the Second World War was held void for
being of uncertain maximum duration. In William Jacks and Company (Z)
Limited V O’Connor (in his capacity as Registrar of Lands and Deeds)
Construction and Investment Holdings Limited (intervening), 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. 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.in Appah v Parn Cliffe Investment Limited, 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.
To sum it up, it was stated in the case of Chilufya v. Kitwe City Council (1967)
Z.R 115 (H.C) that there is a difference between a lease and a license: 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 which is less than that which the grantor himself has in the
land. A license on the other hand, is merely an exclusive right to do something on
a property. Therefore 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 rests on its
own weight on the land,
(b) Easements and Profits
Easements and Profits, also knows as land servitudes, are interests entitling their
owners to exercise certain rights over the land of another. These interests arise
as a result of two separate land in proximity. The owner of an easement has a
right to lawful but limited use of another person's property; e.g., I have the right to
drive across your land to reach my land.
Easements comprise certain rights which one landowner may exercise or enjoy
over the land of another. 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 serviette land. For an
easement to exist there are features that must be present.
There must be land that is benefiting from the exercise of the right (the dominant
tenement) and land that is burdened (the servant tenement). The Dominant and
Serviette tenement must not be owned and occupied by The Same Person. The
easement must accommodate the dominant tenement. Easements are rights,
which attach to land and not to persons. In the case of Hill v Tupper it was held
that the plaintiff’s right amounted to a mere personal advantage or a license not a
right attaching to land itself. He could not sue the defendant, as the right was not
an easement. The right was not sufficiently connected with the land so as to
amount to an easement.
A Profit is a right to lawful but limited use of another's property when there is no
dominant tenement. 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. A profit may exist ‘in
gross; i.e. belonging to a person in his right, not as annexed to ownership of land.
The land which comprises the dominant tenement need not be adjacent or
neighboring to the land subject to the serviette tenement, whereas with
easements there is a requirement for neighboring or adjacent land. A profit a’
Prendre confers a right to take from the serviette tenement- something capable
of ownership or some part of the soil of that tenement.
The case of Alfred F Beckett Ltd v Lyons held that Profits à Prendre entitle the
owner of the dominant tenement to take either a part of the land or take parts of
things that grow on or in the land or to take living creatures that grow on or in the
land or waters within the serviette tenement. Water is exceptional in that it cannot
be owned.
(c) Fee tail and Fee simple
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. The word ‘fee’ denotes
inheritability; ‘simple’ indicates that the estate is inheritable by general heirs, i.e.
ascendants, descendants or collateral. 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. Fee Tail, A fee tail estate is an inheritable estate,
which lasts as long as the original grantee or any of his descendants live. 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’.
QUESTION FOUR
Land tenure system 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. In Zambia therefore, there are two main ways in
which a person may exercise and enjoy these rights to land and these are
through customary tenure and statutory tenure, customary tenure being under
customary lands and statutory tenure under state lands. The adoption of these
two-land tenure systems has brought about adverse challenges and
opportunities some of which are stated below. An example can be seen in the
case of Makwati v Senior Chieftness Nkomesha, the courts held that once
customary land has been converted to leasehold, a chief has no control over the
land and cannot thereafter withdraw the consent to convert. In this case it can be
seen that the chieftainess believed that she had absolute power and could
exercise this power even after land was converted to statutory tenure from
customary tenure. Additionally in the second case of Mwiinda v Gwaba, it was
held by the courts 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. This was after the said headman wanted to transfer the plaintiff
to another village. The case as well brings out the very challenge of the chiefs
and headmen wanted to exercise absolute control over land and thinking that
land belongs to them.
Another challenge is that the adoption of a dual land tenure system, specifically,
under customary tenure, does not support the registration of land rights even
though recognition of these same rights is guaranteed. No single person can
claim to own land as the whole land belongs to the community, thus exclusive
rights to land are not allowed. What this does is that in cases of conflicts between
the local people who use land under customary tenure and those individuals who
gain customary land by converting the land in question from customary tenure to
statutory tenure, the local people find it difficult to impossible to that they were
given that land by the chief, they may merely have a letter from this chief
whereas the other party has a certificate of title which weighs heavier than a
mere letter. In the case of Mukelabai v Gunther Widmaier, it was held by the
courts that the plaintiff had failed to satisfy the court whether verbally or by
document that the land given to him by the Litunga included lot 6020/m now
occupied by the defendant. What this case shows is that the plaintiff could not
show that he was truly given the piece of land by the Litunga. If there was a form
of formal registration under customary tenure then he might have been able to
show that the land in question was truly given to him.
Moving on another challenge is that there has been failure to consult the other
person or body who are affected by the grant of land. What usually happens is
that people converting the land from customary tenure to statutory tenure consult
the chiefs and local councils only, the people on customary land who might be
affected by the grant of land such as people who might not live on the land but
collect wild berries or fruit are not consulted. Section 3(4) of the lands act
states that notwithstanding the subsection (3), the president shall not alienate
any land situated in a district or an area where land is held under the customary
tenure without consulting any other person or body whose interest might be
affected by the grant. In the case of siwale v siwale, 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 the title for 400 hectares only 200 hectors
was approved and he was issued a certificate of title for the same. In this case,
the respondent failed to consult his siblings before converting the land from
customary tom statutory tenure.
Some of the opportunities that have being created with the creation of a dual land
tenure system is that it has struck a balance between customary area and
statutory area, it has also recognized the authority of chiefs, them being
traditional leaders. This can be said in light of the fact that where disputes arise
concerning land matters of customary tenure, the chiefs have the authority to
settle the disputes, thereby reducing the number of cases that the lands tribunal
(established on section 20 of the Lands Act, Cap 84) has to deal with or
handle.
In Zambia, they are various laws tasked with the responsibility of insuring that the
dual land tenure system operates with great efficiency. However, these laws
have lacunas, which must be addressed in order to ensure the smooth running fo
the dual land tenure system.
Firstly, there is no provision in the legal framework that addresses the issues that
many people who have been displaced from customary land have. Secondly, the
functions of the commissioners of lands are not stated in the lands Acts or the
statutory instruments, which establishes the office of the commissioner of lands.
What this has in turn caused is the abuse of the office because the producers
that should be undertaken in the commencement of work of the commissioner of
lands are to no avail. In the case of Eustace Bono and Another v The
Commissioner of Lands and Another it was held in the view of the judge, that
the plaintiff discharged their obligation diligently in manner they conducted the
search and it would be absurd as outsiders who had faith in the system at the
ministry of lands to be lamped with the so called confusion, manipulations of
shortcomings at the ministry of lands. If there is any one to blame, it can only be
the commissioner of lands at the material time. This therefore goes to show that
due to the absence of functions of the commissioner of lands, which are not
stated in the lands act or the statutory instrument, which establishes the office of
the commissioner of lands and is bound to make mistakes and be at fault such
as in the case above
Thirdly, there is no provision for the converting of land back to customary tenure
from statutory tenure. The law only provides for conversion of land from
customary tenure to statutory tenure. This is done under section 8 of the Lands
Acts in which it states inter alia, the conversion of rights form customary tenure
to leasehold tenure shall have effect only after the approval of the chief and the
local authorities in whose area the land to be converted it situated.