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
was held void for being of uncertain maximum duration. In William Jacks and
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
 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
5.2 Types of Tenancies
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
 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 lease 11 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 dissent 14. The
tenant is liable to pay compensation for occupying and using the land 15. 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 assent 16. 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 land 22. 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 the

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
 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
5.5 Landlord and Tenant’s Remedies for breach of Covenants.
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
 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
rules of the law of contract. Since these licences are founded in contract, both the

36
Dixon, M, supra note 3 at p. 153.
37
[1673] Vaugh 300.
38
Dixon,M, supra note 3 at p. 198.
39
Ibid at p.199.
40
Ibid.
41
Ibid.

68
 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.

5.6.3 Licences Protected By Estoppel

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
 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

5.6.4 Licences Coupled With A Grant Or Interest

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
 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.

(b) Distinction Between a Lease and a Licence.

56
James Jones and Son Limited v Earl of Tankerville [1909] 2 Ch 440.
57
Ibid.
58
[1965] 2 ALL ER 786.

71
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 Council 60, 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
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

59 (1967) ZR 115.
60
[1904] 1 KB 713.

72
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
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

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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 7 th 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 7 th 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
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

74
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 7 th
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
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:

75
‘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-
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

76
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
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

77
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
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.’

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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.’

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

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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 7 th 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 … ’

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

80
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.

(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]

81
[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
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

82
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.

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,

83
 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….

(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.

84
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.
The case is excerpted below.

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:
61
(1975) Z.R 174 (S.C).

85
 "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
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:

86
 "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
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

87
 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
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

88
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 1 st 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
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.

The case is excerpted below.

62
(1977) Z.R. 138 (H.C.)

89
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 Langford 64 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
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

63 [1952] 2 TLR 659.

64 [1949] 65 TLR 138.

65 [1952] 1 TLR 1037.

66 [1952] 1 TLR 1386.

67
[1975] LR 10 QB 422.

90
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 Browne 76], the courts of equity would
grant an injunction to restrain the landlord from enforcing his rights at law [as in Browne v Warner 77. 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 Warner 78 . They would order the landlord specifically to perform the contract, so
construed, by executing such deed. This court did so in [Zimbler v Abrahams 79]. This means that the widow
had an equitable interest in the land."

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.
77
[1808] 14 ves. 409].
78
Ibid.
79
[1903] 1 K.B. 577.

91
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.

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

92
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.
(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.

The case is excerpted below.

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

80 (1988 - 1989) Z.R. 181 (S.C.)

93
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
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 22 nd 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

94
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
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

81
[1976] 2 ALL. ER 39.

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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.

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

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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…

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-

82
[1941] 3 All ER 156.
83
[1958] 2 QB 245.
84
[1916] KB 308.
85
(1976) 2 All ER 39.

97
 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
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

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 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.

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

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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.

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