SCHOOL OF LAW

L303 – Land Law Group Assignment

GROUP MEMBERS

NAME AND STUDENT ID.

1. KASAMBA NKHOMA LLB20120680

2. GRACE LIDAH MWALE LLB18212745

3. NAMAKAU MUNAKABAYO LLB19182138

4. MAPALO CHIPONDA LLB19217780

5. WANKUMBU NAKAMBA LLB21121212

6. CHABOTA MASUWA LLB19216940

7. EUNICE MULESHI LLB19115597

8. TAMARA LUKONDE LLB20119862

9. DAISY B MULENGA LLB17210502

10. HENRY SINYANGWE LLB20220698

DUE DATE: WEDNSDAY 17TH MAY, 2023.

QUESTION ONE

A).

In Zambia, two or more persons may jointly own and use a piece of land. Land can be
used and owned by two or more individuals as joint tenants or tenants in common. This
essay aims to examine the following issues: first, it explores whether Tom's wife might
inherit his interest in the land after his death. Whether or whether Robert and Mabvuto
had a legal contract was the final question, followed by whether or not Precious had an
equitable interest in the property.

Regarding the first concern, we must determine whether or not Mabvuto and Tom
became joint tenants or tenants in common. Section 51 of the lands and deeds registry
act provides for the form of co-ownership. From the facts, since the co-owners have a
distinct and quantifiable share then the form of co-ownership that subsists between
them is tenants in common. Under this type of ownership, there is no Jus Acrescindi or
the right of survivorship. Thus, the shares remain unaffected by the death of any other
tenant, whose share passes under his will or intestacy. It can therefore be stated that
Jane, Tom’s widow has a legal interest in the land and is therefore entitled to any
proceeds from the sale of the aforementioned property if at all she consents to the sale.
In Popatlal v Gauff and another, the court held that one co-owner cannot sell without the
consent of another. Since Jane’s husband had consented to the sale, she is therefore
entitled to half the amount for sale of the land.

Regarding the second question, which was whether or not there was a valid contract, it
was determined that Mabvuto and Robert had a legal land deal. Section 4 of the Statute
of Frauds stipulates that any conveyance of land, including a mortgage lease, must be
supported by a note or other written document. A note or memorandum is sufficient to
satisfy the requirements of Section 4 of the Statute of Frauds provided that it contains
the names of the parties, the subject matter, and the consideration, as determined by
the courts in the case of Vincent Mijoni v. Zambia Publishing Company. The contract
was documented in writing by written pieces of receipts that specified the consideration,
subject, and identification of the parties, according to the relevant facts at hand. It can
be inferred from the Vincent Mijoni v. Zambia Publishing Company ruling that the written
evidence complied with section 4 of the statute of frauds. Consequently, there was a
legal contract.

In conclusion, based on the type of co-ownership that subsisted between Mabvuto and
Tom, there is no right of survivorship, which makes Tom’s widow a co-owner after the
death of her husband. Last but not least, due to a legitimate contract between the two
parties, Precious has a right to the land that her late husband Robert left her. Jane is
entitled to half of the money from the sale of the property.

B.

Gondwe v Ngwira

In this case, the courts essentially introduced a principle about the impact of fraud on
the legitimacy of a certificate of title. The court ruled that fraud cannot impact the
certificate of title unless it is done by the buyer rather than the seller.

Mulla & others v Ngwira

The judges in this case were tasked with interpreting the Constitution and the Land
Tribunal Act to determine whether the language of the Act's provisions eliminated the
High Court's ability to hear cases involving land as a court of first instance. It was
decided that the Land Tribunal Act did not oust the High Court's ability to hear cases
involving land as a court of first instance.

Namungandu v Lusaka City Council

The degree of annexation test, which is used to establish whether or not a chattel is a
fixture or a fitting, was the subject of this case. In this case, the courts determined that
door frames, sockets, and other electrical fittings that were intended to be a part of a
whole house are considered fixtures and not fittings. The question is whether the chattel
is firmly fastened to the wall to the point that its removal will sufficiently harm the land.
Noakes v Rice

This case brought out the principle in relation to collateral advantages in a mortgage
transaction. The court held that a collateral advantage ceases immediately the
mortgage is redeemed.

White v Ronald Westerman

The courts in this case held that a provisional certificate of title shall confer all rights and
benefits. However, it can be challenged by a person who has better title.

QUESTION 2

a. There are two doctrines of estate which are the doctrine of tenure and the doctrine of
estate. The doctrine of tenure is where the land is held subject to certain conditions.
Tenure answers the question ‘‘how is land held’’. Under the doctrine of tenure, land
was held under free tenure, unfree tenure and customary tenure. Under free tenure,
land was given to people who offered certain services e.g. military personnel and
religious leaders. Under unfree tenure land was given to people who would offer
menial services, basically their jobs were not predetermined. Under customary
tenure land was given according to lineages.
Under the doctrine of estate, it basically answers the question ‘‘for how long’’ land is
held. There are three forms for freehold or rather estates: fee simple estate, fee tail
and life estate. Under fee simple, land was held as long as the original owner has
heirs. Under fee tail land was held for as long as the descendants of the guarantor
lives. Under life, land was held for life till point of death. However, life estate does
not apply in the modern Zambian land law as well as fee tail. Section 31 (1) of the
lands and deeds registry act provides that a grant of land for life shall be deemed to
be a leasehold from the person entitled to the reversion or remainder immediately
expectant upon the termination of the life estate created.
b. Section 3 of the Lands Act states that the president shall have absolute ownership of
all land in Zambia and shall hold it in perpetuity for and on behalf of all Zambians.
According to section 3's stipulations, the president owns all land, hence there is no
such thing as absolute ownership. One only keeps their interest in the land. A
certificate of title shall be conclusive as of the date of issue and thereafter,
regardless of the existence of any other person's estates or interests, whether
acquired from a grant from the President, according to Section 33 of the Lands and
Deeds Registry Act.

QUESTION 3

a. Adverse possession is the term used to describe an interest in a piece of land

that is not covered by a certificate of title. As a concrete illustration, one can be
considered to have negatively possessed land if they have had it for more than
12 years and no one has shown up to claim it with a legal certificate of title.
However, the courts determined that an adverse possession right does not apply
where the land has become covered by a certificate of ownership in the case of
Lumayenda v. Chief Chamuko. Additionally, Section 35 of the Lands and Deeds
Registry Act states that once a piece of land has a certificate of title attached to
it, such title is final.
b. A caveat is an interest that a caveator who owns an interest in a piece of land
that belongs to someone else registers with the registrar. In the case of Lenton
Holding v. Moyo, the courts determined that a caveat must be signed by the
caveator or the agent and must specify the specific interest in the land in order to
be effective and legal. Additionally, the courts ruled in the case of Construction
and Investment Holding Limited v. William Jacks and Co. that the registrar is not
permitted to make any entries on the register that would have the effect of
contesting, transferring, or otherwise affecting the estate or interest protected by
such a caveat once it has been filed. In the case of Rosemary Phiri v Awadh, the
 court stated that removal of a caveat without the consent of the caveator is
unlawful. Therefore, it can only be removed by the courts or the caveator himself.
c. The purpose of annexation is one of the criteria used to determine whether a
chattel has turned into a fixture or fitting. The aim of the party while bringing that
specific chattel onto the land, such as whether it was brought onto the land for
ornamental purposes, decorations, or rather making the residence more
comfortable, is more heavily emphasized by the courts. The tapestries in the
Leah v. Taylor case were determined by the courts to be fittings rather than
fixtures because, despite being connected to the wall, they were ornamental in
that sense. The courts ruled in the case of Beskel v. Poullet that the annexation's
goal supersedes the requirement for degree of annexation.
d. Section 3 (1) of the Lands Act provides that all land in Zambia shall be vested
absolutely in the president and shall be held by him in perpetuity on behalf of the
people of Zambia. Furthermore, section 5 (1) of the Lands Act 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. In a
decided case the courts held that the purpose of state consent is to determine
whether the registered proprietor has been complying with the payment of
ground rates or where the person is a person eligible to own land in Zambia.

QUESTION 4
a. In considering my legal opinion on this matter, we shall firstly address
Hamududu’s interest on the land and cheap loans interest in the land.
According to the material facts at hand, Hamududu entered into a contract to
purchase a piece of land to the extent of 1acre a part of property described as
farm no.281a owned by Mr. Zulu. Mr. Hamududu obtained a legal interest in
the particular piece of land. However, Mr. Zulu mortgaged the same property
to cheaploans ltd, the mortgage was registered as a legal mortgage. A
mortgagor has several rights when it comes to a mortgage transaction one of
them being the equitable right of redemption, meaning that the mortgagor has
an interest in the subject to the loan amount and the value of the property. He
 has an interest in that land to that extent. In conclusion Mr. Mbinza of
cheaploans has an interest in the property to the extent of the loan and
Hamududu has an equitable interest in that piece of land.
b. A mortgagee has rights towards mortgaged property, these include the right
to sale, right to foreclosure and the right to take possession. Once a
mortgagor has defaulted on the repayment of the mortgage transaction, the
mortgagor has the right to sell off the property after complying with the
provisions of section 28 of the conveyancing act. This right can be exercised
with or without a court order but it is advisable to obtain one before selling. In
the case of Brian v Hyper Foods, the courts held that they can delay the order
of sale so as to give the mortgagor a change to redeem the property. In the
case of Samuel v Timber, the courts held that a mortgagee cannot sell
property to himself and lastly in the case of Finance Bank v Africa Angle Ltd,
the courts held that the mortgagee should obtain the best price.
The right to foreclose is an order given by the court where the value of the
property is not so different from the loan. The effect of the order to foreclose
is that it extinguishes the mortgagors equitable right to redeem, the right was
stated in the case of Mwanza v Simpasa.
The right to take possession basically gives the mortgagee the right to occupy
or possess the mortgaged property, the case of four maid’s v Doulley states
that the mortgagee has the right to take possession even before the ink on
the mortgage transaction dries.
In conclusion, these rights can be claimed collectively through the right to
foreclose which extinguishes them all.