CHAPTER TEN

THE DOCTRINE IN WALSH V LONSDALE

10.0 Introduction – Need For A Deed To Transfer An Interest

In Land at Law

At law, in order to transfer or create a legal estate, certain formalities had

to be complied with, For example, for a valid lease to be created, the
Statute of Fraud, 1677 required that any contract for transfer or disposition
of land or any interest in land had to be in writing. The Real Property Act
of 1845 made a deed an essential for transfer of any interest in land.
Without a deed no legal interest in land would be created or transferred.
At the time when Walsh and Lonsdale1 was decided, the position of the
law i.e the Real Property Act of 1845 was that a lease for a term of three
years or exceeding three years was void unless it was made by deed2.

10.1 Intervention of Equity

The Real Property Act of 1845 provided that leases which formerly had to
be in writing under the Statute of Frauds, now had to be by deed or would
be void at law. Equity was not strict and in accordance with its maxim or
principle that ‘equity looks on as done that which ought to be done’ the
parties were treated as if the formalities were complied with. It has been
observed that the principle or doctrine attributed in Walsh v Lonsdale,
had already been established in 1958 in Parker v Taswell3 that equity
would treat an imperfect lease (a lease in writing) as a contract to grant a
lease and then order specific performance of the contract4.
In Parker v Taswell, the parties had entered into a tenancy agreement
which was not sealed i.e not under deed as required by the law. Section 3
of the Real Property Act 1845, provided that a lease of any tenement or
heraditament would be void at law unless made by deed. The Lord
Chancellor, Lord Chelmsford, in the course of delivering his judgment
observed and commented that:-

The legislature appears to have been very conscious and guarded in

language for it uses the expression ‘shall be void at law’ – that is as
lease. If the legislature had intended to deprive such a document of
all efficacies, it would have said that the instrument should be ‘void
1
[1882] 21 CHD 9.
2
See Tottenham Hotspur Football and Athletic Co. V Princegrove Publishers Ltd. [1974] 1 ALL. ER. 17.
3
[1858] Ch ER Vol. 44 at page 1108.
4
Riddall, J. G, introduction to land law, 4th Ed, London, Butterworths, 1988, p.251.

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 to all intents and purposes.’ There are no such words in the Act. I
think it would be too strong to say that because it is void at law as
a lease it cannot be used as an agreement enforceable in equity, the
intention of the parties having been that there should be a lease,
and the aid of equity being only invoked to carry that intention
into effect5.

In this case equity intervened and treated an imperfect lease as a contract

to grant the lease and then ordered specific performance of the contract.
In Walsh v Lonsdale, the defendant landlord agreed in writing to grant by
deed the lease of a weaving mill to the plaintiff tenant for a period of
seven years. One of the terms was that the tenant should on demand pay a
year’s rent in advance. No deed was executed as required by law, but the
plaintiff was let into possession of the mill and for a year and half paid
rent quarterly, although not in advance. The defendant then demanded a
year’s rent in advance, and on the plaintiff’s refusal to pay distrained for
it. In an action for damages for wrongful distress and specific performance
of the agreement, the plaintiff’s argument was that the remedy of distress
was legal and not equitable and that as at law he was only a yearly tenant
with no obligation to pay rent in advance, so the defendant could not
distrain for the rent. The case turned on whether Lonsdale had, or had
not, been entitled to claim rent in advance. If he had, his distress had been
lawful; if he had not, it had been wrongful. At common law, since Walsh
paid and Lonsdale accepted one year’s rent , this made Walsh a yearly
tenant. As a yearly tenant Walsh at common law was under no obligation
to pay rent in advance or until the end of the second year. At common law
the distress was therefore wrong. It was held that since the distress would
have been legal had the lease agreed upon been granted by deed, and
since equity treated the parties as if this had been done the distress was
lawful in equity.
The Court held that the position in equity prevailed over that at common
law. In making or arriving at this judgment the court was applying section
25 of the Judicature Act, 1873, which provided that “ in matters ….in which
there is any conflict, or variance between the rules of equity and the rules of
Common law with reference to the same matter, the rules of equity shall prevail”.
In this case no deed was executed by the parties as required by the law but
using the principle of equity that “ equity looks on as done that which ought to
be done” the parties were treated as if this was done and if under the terms
of the lease a year’s rent would have been payable in advance on demand
a distress for that was lawful.

The learned Authors of Megarry’s Manual of the Law of Real Property

have observed that the effect of the decision in the Walsh v Lonsdale is to
5
supra note 3 at page 1111.

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 render an enforceable agreement for a lease very nearly as good as a legal
lease and further that the same applies to an imperfect lease which is
enforceable as an agreement for a lease6.

10.2 Effect of Walsh Vs Lonsdale in Equity – Willingness of the Court to

Grant Specific Performance.

The effect of Walsh v Lonsdale in equity depends upon the willingness of

the court to grant the discretionary remedy of specific performance. 7 In
Warmington and another v Miller8, Stamp L.J observed and commented
thus :-

It is not and never has been the contention of the plaintiffs that
they are lessees at law under the agreement; and counsel for the
defendant submitted, as I think correctly, that the Walsh v
Lonsdale situation, where the intended lessee is treated as having
the same rights as if a lease had in fact been granted to him, only
applies if the lessee is entitled to specific performance (see the
judgment of Sir George Jessel MR in Walsh v Lonsdale ( at 14).
The equitable interests which the intended lessee has under an
agreement for a lease do not exist in vacuo but arise because the
lessee has an equitable right to specific performance of the
agreement. In such a situation, that which is agreed to be and
ought to be done is treated as having been done and carrying with
it in equity the attendant rights. But the intended lessee’s
equitable rights do not in general arise when that which is agreed
to be done would not be ordered to be done.

10.3 CASE LAW

(a) Executory agreement for a lease is as good as a lease where there court is prepared to grant specific performance.

WALSH v. LONSDALE. [1882] 21 CH D 14.

6
Ibid at page 337.
7
Hina Furnishing Limited V Mwaiseni Properties Limited (1983) Z.R 40 – the case is excerpted under
the section dealing with case law.
8
[1973] 2 ALL. ER at 377.

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The Defendant on the 29th of May, 1879, agreed to grant and the Plaintiff to accept a lease of a mill for seven years at
the rent of 30s. a year for — each loom run, the Plaintiff not to run less than 540 looms. The lease to
contain such stipulations as were inserted in a certain lease of the 1st of May, which was a lease at a fixed rent made
payable in advance, and contained a stipulation that there should at all times be payable in advance on demand one
whole year’s rent in addition to the proportion, if any, of the yearly rent
due and unpaid for the period previous to such demand. The Plaintiff was let into possession and paid rent quarterly,
not in advance, down to the 1st of January, 1882, inclusive, having run in 1881 560 looms. In March, 1882, the
Defendant demanded payment of £1005 14s. (840 as one whole year’s rent for 560 looms at 30s., and £165 14s. as
the proportionate part of the rent from the 1st of January last), and put in a distress. The Plaintiff thereupon
commenced his action for damages for illegal distress, for an injunction, and for specific performance, and moved for
an injunction. Fry,J., granted the injunction on the terms of the Plaintiff paying the £1005 14s into Court. The Plaintiff
appealed.
Held, that since the Judicature Acts the rule no longer holds that a person occupying under an executory agreement for
a lease is only made tenant from year to year at law by the payment of rent, but that he is to be treated in every Court
as holding on the terms of the agreement
Held, therefore, that the Plaintiff holding under the agreement was subject to the same right of distress as if a lease
had been granted, and that if under the terms of the lease a year’s rent would have been payable in
advance on demand a distress for that was lawful
JESSEL, M.R. It is not necessary on the present occasion to decide finally what the rights of the parties are. If the
Court sees that there is a fair question to be decided it will take security so that the party who ultimately succeeds may
be in the right position. The question is one of some nicety. There is an agreement for a lease under which possession
has been given. Now since the Judicature Act the possession is held under the agreement. There are not two estates
as there were formerly, one estate at Common Law by reason of the payment of the rent from an estate in equity under
the agreement. There is only one Court, and the equity rules prevail in it. The tenant holds under an agreement for a
lease. He holds therefore under the same terms in equity as if a lease had been granted, it being a case in which both
parties admit that relief is capable of being given by specific performance. That being so he cannot complain of the
exercised by the landlord of the same rights as the landlord would have had if a lease had been granted. On the other
hand, he is protected in the same way as if a lease had been granted; he cannot be turned out by six months’ notice as
a tenant from year to year. He has a right to say,” I have a lease in equity, and you can only re-enter if I have
committed such a breach of covenant as would if a lease had been granted have entitled you to re-enter according to
the terms of a proper proviso for re-entry.” That being so, it appears to me that being a lessee in equity he cannot
complain of the exercise of the right of distress merely because the actual parchment has not been signed and sealed.

In Tottenham Hotspur Football & Athletic Co Ltd v Princegrove Publishers Ltd, 9

Lawson.J observed and commented thus in relation to the doctrine in Walsh:-

The second submission of the plaintiffs derives basically from the proposition in equity,
that equity looks on that as done which ought to have been done. Counsel for the
plaintiffs cited passages in Snell’s Principles of Equity in support of his second
submission. Importantly, bearing on the second submission, is the well-known case of
Walsh v Lonsdale. The report of that case does not reveal a vital matter because—and I
agree with counsel for the plaintiffs—those who were engaged in that case knew what
they were talking about, and accepted certain premises which do not appear in the
report. But the position at the date when Walsh v Lonsdale was decided was that a
lease for a term of seven years was void unless it was made by deed. This is a provision
which is found in s III of the Act entitled ‘An Act to amend the Law of Real Property’, but
usually known as the Real Property Act 1845e. The importance of that point in Walsh v
Lonsdale was that the tenant, who was in fact the plaintiff, suing for damages for illegal
distress, was a person who had entered into an agreement for a lease of seven years
with the defendant—the landlord. He had, in fact, entered pursuant to that agreement,
but no such lease had in fact been executed. Therefore, he was merely a tenant in
equity. The right of distress for rent only accrues when the tenant enjoys a legal estate.
9
[1974] 1 ALL.ER 17.

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 The plaintiff therefore contended that the distress was illegal, since he was only a tenant
in equity, and had no legal estate, the right of distress not being available for that reason.
But the court held—I am reciting from the headnote that since the Judicature Acts the
rule no longer holds that a person occupying under an executory agreement for a lease
is only made tenant from year to year at law by the payment of rent, but that he is to be
treated in every Court as holding on the terms of the agreement:—Held, therefore, that
the Plaintiff holding under the agreement was subject to the same right of distress as if a
lease had been granted, and that if under the terms of the lease a year’s rent would have
been payable in advance on demand a distress for that was lawful.
I find that authority, and the operation of this maxim decisive in the present case. Putting
it in a nutshell, as a result of Walsh v Lonsdale, and the principle that Walsh v Lonsdale
expounds, the position is that, if a person goes in and occupies property as tenant under
an agreement, it is taken as if an instrument giving effect to the new tenancy on the
agreed terms has been executed.10

(b) A contract for a lease is as good as a lease where the court is willing to grant the discretionary remedy of specific
performance – A court will not grant the remedy in favour of a tenant whose tenancy agreement is subject to a
condition precedent which has not been performed e.g obtaining Presidential consent or who is in breach of term of the
agreement.

In Hina Furnishing Lusaka Ltd V Mwaiseni Properties Ltd ,11 the plaintiff sought an injunction to restrain the defendant
from hindrance, molestation and interruption of the plaintiff's peaceful and quiet enjoyment of its occupancy of the
demised premises during the term of tenancy or until further notice. The premises were demised under a contract to
lease which was neither executed, nor carried the requisite Presidential consent. The action arose out of the
defendant's effective re-entry and possession of the premises upon the plaintiff falling into several months rent arrears.
It was contended for the defendant that the plaintiff could not succeed since they were seeking discretionary and
equitable remedy available only where one comes to court with clean hands. The Case is excerpted below.

KAKAD,J ... since 15th August, 1975, under the provisions of s.13 of the Land (Conversion of Titles) Act, 1975,
(hereinafter referred to as Act 20 of 1975, every person is mandatorily restricted from sub-dividing and alienation of
land, which includes sub-letting, without prior consent, in writing, of the President.

Under the provision of s.13 (2) of Act 20 of 1975, the President in granting his consent may impose such terms and
conditions as he may think fit. Such terms and conditions shall be binding on all persons and shall not be questioned in
any court or tribunal.

In this case neither party has exhibited the written consent by the President consenting the leasing of the premises as
agreed between the parties. The defendant has exhibited an unexecuted lease. It appears to me that the lease
remains unexecuted because the written consent as required under s.13 (1) of Act 20 of 1975 has so far not been
granted. Under the provisions of s. 13 (1) of Act 20 of 1975, the defendant was strictly restricted from sub-letting the
premises to the plaintiff without prior written consent of the President. I therefore consider that in the absence of the
written consent of the President, there was no legal estate or interest on the premises conveyed to the plaintiff. In the
result the plaintiff, in my judgment, does not seem to be a protected tenant under the provisions of the Act, Cap. 440.

The terms of the lease i.e. parties, property, length of term, rent and commencement date of terms, appears to have
been agreed upon between the defendant and the plaintiff. Thereupon the plaintiff was allowed to occupy the
premises. Equally the plaintiff on his part paid rent for some months (see William Jacks and Company (Zambia)
Limited (1967) Z.R. 110). It therefore appears that in all probability there was an agreement for lease, though I would
not make any conclusive findings to that effect.

In Woodfall, Landlord and Tenant Vol. 1 (27th Edition) at page 132 , contract for lease or an agreement-for lease is
defined as under:

10
Ibid at pages 24-25.
11
(1983) ZR 40 (H.C).

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 A contract for a lease is an agreement enforceable by law whereby one party agrees to grant and
another to take lease. The expression 'contract for lease' and 'Agreement for lease' are usually
inter-changeable, but 'Contract for lease' is preferred as being more definite, agreement frequently
meaning one of many stipulations in a contract. A contract for a lease, is to be distinguished
because lease is actually a conveyance of an estate in land, whereas contract for a lease is
merely an agreement that such a, conveyance shall be entered into at a future date."

In para. 381 of the mentioned Woodfall Vol. 1, at p.162, it is stated:

"If any material point, such as the amount of premium or rent, is by the contract left to be
determined by third persons, e.g. arbitrators or surveyors, and that has not been done before
action, the court will not decree specific performance, having no power to compel such third
persons to perform their duty; it therefore treats the contract as too imperfect to be specifically
enforced."

In the same Volume at p.177, in para. 420, it is stated:

"Since the Judicature Act, 1873, a tenant who enters into possession under a contract for a lease
of which specific performance would be granted is not a tenant from year to year only, but holds
under the same term in equity as if the lease had been actually granted. The landlord can therefore
exercise all rights, legal as well an equitable, which he would have had if a lease had been
granted, and likewise the tenant is protected in the same way as if lease had been drawn up and
executed. If under the terms of the lease agreed upon, year's rent would have been payable in
advance on demand, a distress for that rent may lawfully be levied upon a tenant holding under the
agreement. This principle was laid down in the leading case of Walsh v Lonsdale, and the
judgment of Jessel, M.R.;in that leading case has frequently been approved, The principle has no
application, however, to a case where specific performance would not be granted, for example
where agreement for a lease was subject to a condition precedent which has not been fulfilled and
has not been waived by a lessor."

In the Law of Real Property by Megarry and Wade, (4th Edn.) at p.626, differences between legal and equitable leases
have been explained as under:

"The effect of Walsh v Lonsdale was often summed up in the words 'a contract for a lease is as
good as a lease'. For many purposes this is true, but as generalisation it is misleading, for it
ignores the vital differences between legal and equitable interests.The difference between a
contract and lease is in reality substantial: a contract falls short of lease in the following respects.

(a) Dependence upon specific performance. The effect of Walsh v Lonsdale in equity
depends upon the willingness of the court to grant the discretionary remedy of specific
performance.If for any reason an agreement for a lease one which the court cannot or
will not grant specific performance the position under it is very different from that under
legal lease; the parties can have nothing more than a right to sue for damages under the
agreement, though yearly or other periodic tenancy may arise in the usual way. For
example, there can normally be no specific performance in favour of a tenant whose
tenancy agreement is subject to a condition precedent (e.g. to repair) which he has not
performed, or who is already in breach of one of the terms of the agreement, or whose
claim is to an underlease which can be granted to him only in breach of a covenant
against sub-letting in the head-lease. He who comes to equity must with clean hands,
and he who seeks equity must do equity. In such leases the tenant must stand or fall by
his rights (if any) at law."

As I have said, it appears that there was an agreement for lease between the plaintiff and the defendant upon the
agreed terms. One of the terms of the agreement obviously was that the plaintiff had covenanted to pay K7,500.00 as
rent per month. The plaintiff it is evident had paid the agreed rent for some months. Equally he has conceded that he
has been arrears for the months of December, 1982, January, 1983 and February, 1983 i.e. the month before he was

169
evicted. The law is that there can normally be no specific performance in favour of a tenant whose tenancy is subject to
a condition precedent or who is already in breach of one of the terms of the agreement. In this case the plaintiff in
failing to pay the rent for the months of December, 1982, January, 1983 and February, 1983, had apparently breached
one of the terms of the agreement for lease. Secondly, in my view, the agreement for lease, even though the rental
was agreed between the parties, was subject to a condition precedent because under s.13 (3) (b) the rent agreed
between the parties had to be consented in writing by the President. It is clear that under s.13 (3) (b) of Act 20 of 1975,
the President may allow the agreed rent or may fix a rent which be deems it, proper and that decision could not be
questioned in any Court or tribunal. In the premises I have my doubts as to whether there could be specific
performance in favour of the plaintiff.

Further, it is also my view that until the written consent by the President was obtained, as provided under s.13 (1) of
Act 20 of 1975, notwithstanding the validity of the Agreement for lease between the plaintiff and the defendant, the
defendant as the landlord, had no power to grant occupation of the premises to the plaintiff. Consequently the plaintiff,
in my view, had and has no right to legally occupy the premises. I have, therefore, my reservations as to the plaintiff's
rights, legal or equitable to quiet and peaceful enjoyment of the premises as claimed by the plaintiff.

In Sundi v Ravalia12, the High Court of Northern Rhodesia (Woodman.J) was

faced with a situation (somewhat similar to Walsh Vs. Lonsdale), where a lease
for a duration of 4 years was not registered as required under Section 4 of the
Lands and Deeds Registry Ordinance (now Section 4 of the Lands and Deeds
Registry Act).13 Section 6 of the Ordinance (now section 6) of the Lands and
Deeds Registry Act provides that if a document is not registered within the
prescribed period, the same “shall be null and void”. His Lordship held, inter
alia, that the meaning of the phrase “null and void” under section 6 is of “no
effect whatsoever” and that in such a situation a lease cannot pass any interest
and cannot be specifically enforced. His Lordship refused to follow an earlier
decision of Robinson J (in the High Court of Northern Rhodesia in Ward v
Casale and Burney14), who interpreted the expression “ null and void” in the same
way as the Courts in England have interpreted the expression “void at law in the
Real Property Act of 1845. In that case Robinson J, held that there was no
difference, in his opinion, between ‘null and void’ and ‘void at law’. Robinson J
then went on to order specific performance of the option to purchase contained
under the unregistered lease. According to his Lordship the agreement could
still take effect in equity. The two cases are excerpted below.

(c) Ward v Casale and Burney LRNR [1949 – 54 ] Vol. p.759

In Ward v Casale and Burney, Robinson J - commented and observed thus:-

… Section 4 (1) of Cap. 68 [now: Cap. 84] reads as follows: "Every document purporting to grant, convey or
transfer land or any interest in land or to be a lease or agreement for lease . . . for a longer term than one
year . . must be registered." Section 6 says: "Any document required to be registered…and not registered
shall be null and void".
12
[LRNR] (1949-54) Vol. p 345
13
Chapter 185 of the Laws of Zambia.- The Lands and Deeds Regisrty Act is covered under chapter 17 of
this book
14
[1949-54] Vol. P. 759.

170
 The agreement, therefore, is useless to the plaintiff both as a lease and also as an option to purchase, which
is an interest in land, see Hailsham Halsbury, Volume 20, p.65 when the authorities are collected. Mr.
Williams for the plaintiff relies on the equitable jurisdiction which this Court undoubtedly possesses and
submits that the plaintiff can succeed in spite of the structures of Cap 68 [Editor-now 84].
The legal position appears to be that inasmuch as the plaintiff entered into possession and paid rent, a
tenancy from year to year was created upon the terms and conditions of the agreement, Walsh v Lonsdale
(1882) 21 Ch. 9 . Also it is clear that in this case Cap, 68 “null and Void", has to be dealt with, and not the
statute of Frauds "no action shall be brought". But by the Real Property Act, l845 (8 and 9 Vict C. 106) leases
which formerly had to be in writing, i.e. under the Statute of Frauds, now had to be by deed or shall be void at
law". English cases, therefore, decided since the passing of that Act, such as the above, are a useful guide to
the law in Northern Rhodesia. There is no difference in my opinion between “null and void” and “void at law”.
There is no doubt that the Courts in England have gone a very long
Way, in the exercise of their equitable jurisdiction, to give effect to the original intentions of the parties and
not to allow one party, repenting of his bargain, to shelter behind the strict letter of the law. For instance, take
the case of, Martin v. Smith 9 Ex 50, decided in 1874. The plaintiff agreed to let a house to the defendant for
seven years and the defendant, in the last year of the Term, was to paint it. The agreement was void as a
lease because it was not by deed (8 and 9 Vict.C..106). It was argued that a covenant, to paint in the
"seventh year was inconsistent with a tenancy from year to year, yet nevertheless the Court found no
difficulty in enforcing it on the ground that although the agreement
was void at law as a lease yet the plaintiff could have enforced the lease by specific performance had the
defendant at all time attempted to eject him. See Parker v. Taswell (1858) 2, L.J. (Ch,) 1812 and 44 E.R
1106. It is argued for the plaintiff that those two cases are sufficient authority for him to succeed in his
present claim; The Courts enforced the original bargain although the agreement in which the terms were set
out was void at law.
But, superimposed on that, is the doctrine of part performance by which is meant that file Court, exercising
its equitable jurisdiction, will see that a bargain, although unenforceable or void at law, is wholly enforced if
part of that unenforceable bargain has been carried out by , the party seeking to enforce it. In the case of
Brough v. Nettleton (1921) 2 Ch.25. A. verbally agreed with B. to grant him, a lease of a certain house for 2
½ Years from 1st October, 1917, at a specified rent and that should have the option , to be exercised in
writing of , of purchasing the house at any time during the tenancy for £500 . On the faith of this parol
agreement, B. was only a yearly tenant at the specified rent; alternatively he relied on the statue of Frauds. It
was held that the possession by B was an act of part performance which enabled him to give evidence of all
the terms of the parol agreement for the tenancy, and entitled him to specific of that agreement including the
option to purchase.
On the part of the case, I am satisfied that the plaintiff is entitled to specific performance of the option to
purchase unless the authority cited by Mr Lloyd Jones for the defendant is insuperable…

(d) O. H. SUNDI v A.N. RAVALIA N.R.L.R [1949-54] Vol. P. 345

[The facts of the case appear from the Judgment of Mr. Justice Woodman.J]
This is an appeal by 0. H. Sundi against a decision of the Subordinate Court (Class I) Fort Jameson giving judgment
for the respondent A. N. Ravalia with costs in an action brought by the appellant against the respondent in which the
appellant claimed £120 from the respondent as rent due and unpaid for the stand on Plot No. 48.

171
The action was commenced on the 17th March, 1948, by writ of summons. No statement of claim was filed by the
plaintiff apart from the particulars of claim set out in the writ of summons which were as follows: “Rent for stand on Plot
No. 48 should be in advance for 1948 and not yet paid
No statement of defence was filed by the defendant. As the Subordinate Court did not order the plaintiff to file a written
statement of claim nor order the defendant to file a written statement of defence the procedure followed was in
accordance with Order XVIII rule I of the Subordinate Courts (Civil Jurisdiction) Rules (Cap. 4).
The plaintiff relied on a tenancy agreement dated the 24th January,
1947, according to the terms of which the appellant agreed to let and the respondent agreed to take on rent all that Plot
48 situate in Fort Jameson Township along with the buildings thereon erected for a period of four years commencing
from the 1st February, 1947, at the yearly rent of £120 payable yearly in advance.
This tenancy agreement was not registered as required by section 4 (I) of the Lands and Deeds Registry Ordinance
(Cap. 84) (hereinafter called “the Ordinance “). . -
The Subordinate Court found as a fact that the respondent did not enter into possession until 15th May, 1947. The
respondent paid to the appellant £120 by cheque dated the 8th May, 1947. This cheque was given to the appellant on
the 8th May, 1947. On the face of the cheque were written the words “House rent for one year “. It was at no time
suggested that these words were written after the respondent signed the cheque.
At the trial counsel for the plaintiff contended that although the tenancy agreement was not registered the defendant
was to blame for that and was consequently estopped from alleging that the agreement was ‘ null and void” despite the
provision of section 6 of the Ordinance which reads “Any document required to be registered as aforesaid and not
registered shall be null and void” He further contended that even if the defendant was not estopped, the effect of
section 6 of the Ordinance was that the tenancy agreement, though void in law as a lease, was valid in equity as an
agreement for a lease and could be specifically enforced. And further that; even if the agreement was void in law and
equity, a tenancy from year to year arose by presumption of law, as the defendant had entered upon the premises and
paid an annual rent. He submitted that, the entry was made by the tenant under the terms of the agreement and that
therefore the defendant became a yearly tenant on the terms of the agreement so far as they applied to a yearly
tenancy. In any of these alternative the second year’s rent becomes due on the1st February 1948 have given judgment
for the plaintiff. The contentions of counsel for the defendant at the trial, so far as material to this appeal, were that as
the lease is not registered it was void and of no effect and was inadmissible in evidence. That as the defendant
actually entered into possession on the 15 th of May, 1947 and had paid one year rent of £120 he could not be called
upon to pay any more rent until the 15 th of May 1948, and hence the action which was commenced on the 17 th of
March, 1948 was premature. The subordinate Court held that the effect of non registration of the agreement was that
the agreement was “unenforceable in this action because ipso facto. It is incapable of proof.” The court then went on
to hold that it was nonetheless the duty of the court to determine in equity what the real intentions of the parties were
and to give effect to those intentions. The real intentions of the parties as determined by the courting equity appear to
be stated in the judgment as follows: “the parties entered into an agreement about the store on 24 th January, 1947.
the terms of the agreement appear to be that plaintiff should lease the store to the defendant for the period of four
years as from the 1st February, 1947, at an annual rent of £120 payable in advance, or by quarterly instalments of £30
in the form of bills of exchange: there is also to be inferred a collateral agreement whereby the plaintiff agreed that the
general dealer’s licence in respect of Plot 48 should be in the name of the defendant ; otherwise the proposition would
be obviously no value to the defendant.”

The court however, found that these intentions of the parties were not infact carried out. It held “that the plaintiff had
no intention of fulfilling his part of the bargain until rent was first paid and this was well understood by the defendant. It
was not until the 15th May that the money was forthcoming and the bargain was completed.” On that one would have
expected the court to hold that the tenancy created by the completion of the bargain was a for a years tenancy. That
was the intention of the parties as determined by the court in equity and the court intended to give effect to that
intention.

What the court actually did hold was that “by prescription of law a tenancy from year to year was created as from the
15th may, 1947, at an annual rental of £120 payable in advance the plaintiff’s claim that the rent was due on the 1 st
February. 1948 for £120 therefore fails and there will be judgement for the defendant with costs.” It is that decision
against which this appeal has been brought. There are seven grounds of appeal, some of which raise only questions
of law and others attack findings of fact. I shall first deal with the second ground of appeal which is that the trial court
erred in failing to hold that the respondent was estopped from setting up the plea that the tenancy agreement was null
and void.

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The contention of the appellant is that the non-registration of the tenancy agreement was entirely due to the default of
the respondent, that the appellant had done all he could do to obtain registration by requesting the respondent top
have the agreement registered and that consequently the respondent ought not to be allowed to take advantage of his
own default: But there was nothing to prevent the appellant from registering the agreemet himself. Regulation 3 of the
deeds Registry regulations shows that any person interested under the document is entitled to apply for registration. It
is true that Regulation 6 requires the original and in certain cases one and in other cases two copies to be handed to
the Registrar, As the appellant was only in possession of the counterpart of the lease he contends that he was not in a
position to comply with Regulation 6.

It may well be that for the purpose both the lease and
counterpart are originals, but even if this is not so, the
Registrar under section 4 (2) (b) of the Ordinance has
power to order the lessee to produce the original
lease. A refusal by the lessee to obey such an order could not defeat the landlord’s right to have the lease registered in
these circumstances I can see no reason why the respondent should be estopped from setting
up the plea that the tenancy agreement was null and void, It might have been a different matter if the respondent had
induced the appellant to refrain from registering by falsely informing the appellant that the document had been
registered by the respondent.
The second ground of appeal therefore fails. The questions raised by the other grounds of appeal really amount to
this: what on the correct interpretation of the ordinance were consequences of non registration were circumstances of
this case?
Section 4 (1) of the ordinance, so far as relevant to this appeal, reads as follows:

“4. (1) Every document purporting to grant convey or transfer land or interest in land or to be a lease or
agreement for lease or permit of occupation of land for a longer term than one year or to crate any charge
upon land whether by way of mortgage or otherwise or which evidences the satisfaction of any mortgage or
charge and all bills of sale of personal property whereof the grantor remains in apparent possession … must
be registered within the times hereinafter specified in the Registry or in a district registry if eligible for
registration in such district Registry. Any document required or permitted to be registered affecting land
persons property or rights in any district for which a district Registry has been appointed may be registered
either in such district registry.”

Section 3 ( I) of the ordinance defines “the Registry” as meaning

“ the Registry of Deeds in Lusaka “.

The trial Court held that the tenancy agreement had not been registered as required by section 4 of the Ordinance, and
this finding of fact has not been attacked by either party to the appeal. Section 5 specifies the times within which
registration must be effected.

Section 6 of the Ordinance is as follows: -

“ Any document required to be registered as aforesaid and not registered within the time specified in the last
preceding section shall be null and void: -
Provided, however, that the Court may extend the time within which such document must be registered or
authorise its registration after the expiration of such period on such terms as to costs and otherwise as it
shall think fit if satisfied that the failure to register was unavoidable or that there are any special
circumstances which afford ground for giving relief from the results of such failure and that no injustice will be
caused by allowing registration;

Provided also that the probate of a will required to be registered as aforesaid and not registered within the time
specified in the last preceding section shall be null and void so far only as such will affects land or any interest in land.”
Section 7 (1) of the Ordinance reads;

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7. (1) All documents required to be registered as aforesaid shall have priority according to date of registration; notice of
a prior unregistered document required to be registered as aforesaid shall be disregarded in the absence of actual
fraud.”
The agreement dated the 24th January, 1947, on which the appellant relies was produced to the trial Court and
marked “O.H.S. No. 2 “.
From its terms it is clear that it is a lease and not a mere agreement for a lease for a period of four years and as such it
required to be registered under section 4 of the Ordinance. It is to be noted that even if it were a mere agreement for a
lease it would still require to be registered under section 4. The lease in question, not having been registered within the
time prescribed or indeed at all, is by virtue of section 6 “ null and void” whatever that may mean. Apart altogether
from authority, I should have thought that the Ordinance means exactly what it says, not “void in law but valid in equity
“, nor’ void as a lease but valid as an agreement for a lease enforceable in equity by way of specific performance “, but
simply “null and void “. And if the lease is null and void then it can have no effect whatever, it cannot pass any interest
and it cannot be specifically enforced. Is there any good reason for refusing to adopt this plain and natural
interpretation of the Ordinance? Robinson, J., in the case of Ward v. Casale and .Burney, decided in the High Court of
Northern Rhodesia (civil Case No. 26 of 1941), appears to have held that there was, In his view the expression “null
and void “ in the Ordinance ought to be interpreted in the same way as the Courts in England have interpreted the
expression “void at law” in the Real Property Act of 1845. He says “there is no difference in my opinion between ‘null
and void’ and ‘void at law’”
The Real Property Act of 1845 provided that leases which formerly had to be in writing under the Statute of Frauds now
had to be by deed or “shall be void at law “. Now the leading ease on the interpretation of that provision of the Real
Property Act of 1845 is Parker v. Taswell .
In his judgment in that case Lord .Chelmsford, LC said: The Legislature appears to have been very cautious and
guarded in language for it uses the expression ‘shall be void at law that as a lease... If the Legislature had intended to
deprive such a document of all efficacy, to carry that intention into effect.” So far therefore from the presence of the
words “ at law” in the expression “ void at law “ making just no difference at all, their presence was the ratio decidendi
of Lord Chelmsford’s decision.
There is a further difficulty in the way of holding that under the Ordinance exhibit 0.H.S. 2 is void as a lease but valid as
an agreement for a lease because under section 4 an agreement for a lease for more than one year is just as void for
non-registration as a lease is.
I must therefore respectfully disagree with the opinion of Robinson J., that there is no difference between “null and
void” and “void at law” and with his opinion that the expression “null and void ‘ in section 6 of the Ordinance should be
interpreted in the same way as the English Courts have interpreted the expression ‘void at law” in the Real
Property Act, 1845.
Mr. Conway has relied on the case of Le Neve v. Le Neve, which was a decision under the Middlesex Registry Act,
1708, and other similar oases under other Acts in which it was held that although the Act in terms madc certain
documents void if they were not registered yet a prior unregistered document would not be void against a person
whose document was registered subsequently to the date of the unregistered document, if the person claiming under
the subsequent registered document had notice of the prior unregistered document.
Now. apart from the fact that the question of the effect of notice of a prior unregistered document does not arise in this
ease at all, the case of Le Neve v. Le Neve and other similar cases can be of no assistance in the interpretation of the
Ordinance, even by way of analogy, because the principle applied in those decisions has been expressly excluded by
section 7 of the Ordinance, which provides that “notice of a prior unregistered document required to be registered as
aforesaid shall be disregarded in the absence of actual fraud “.
That being so it is not necessary to deal with any of those decisions in detail, but I may point out that the reason for the
decision in the case of Le Neve v. Le Neve was that the preamble of the Act stated that whereas indisposed persons
had it in their power to commit and frequently did commit frauds by prior and secret conveyances and then followed the
words of enactment. In view of that preamble the Court held that the intention of the Act was only to protect
subsequent purchasers against prior and secret conveyances and not against prior unregistered conveyances of which
they had notice
The Ordinance contains such preamb1e moreover, the case of Le Neve v Le Neve in 200 years old and in more
modern cases it has been held that it would be dangerous to engraft an equitable exception, James L J,in Edwards v
Edwards, quoted with approval Building Co ,in re Tacon v. The company.
Mr Conway for the appellant, contended that as the expression used in the ordinance is “null and void “ and not null
and void to all intents and purposes.” The language of the ordinance was not strong enough to exclude what James,
LJ., called “equitable exceptions.”

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The question as to whether the words “to all intents and purposes” add any strength to the expression “null and void”
is one to which the English Courts have not always given the same answer. There is a long line of old cases to the
effect that the words “to all intents and purposes are little more than an expletive (see Stroud‘s Judicial Dictionary, 2nd
Edition, pp. 2194—6). But in modern times the courts have been less consistent. (See Stroud’s Judicial Dictionary, 2nd
Edition, p. 2196.)
The position now seems to be that it is a question of ascertaining the intention of the Legislature in the particular
enactment under consideration.
Reading sections 4, 6 and 7 of the Ordinance together it seems to me quite clear that the intention of the Legislature
was to deprive of all efficacy documents which are required to be registered under the Ordinance and which have not
been so registered. The only exception is in the case of fraud.
The legislator has met the case of hardship arising from non-registration by providing in section 4 a procedure whereby
the Court may authorise registration out of time in a proper case. It seems to me to be as plain as a pikestaff that the
legislator intended to provide his own equities and did not intend that any others should be read into the Ordinance.
There was no fraud in this case. Failure by the respondent to register was not fraud. The appellant knew or must be
taken to have known the law as well as the respondent. As I have pointed out there was nothing to prevent the
appellant obtaining registration himself and he could even if necessary have applied to the Court for permission to
register out of time. It is not fraud for a man to insist upon his legal rights.
Another argument of Mr. Conway was that the Ordinance only makes the document void and it does not say that the
transaction is void. The transaction therefore is valid and can be enforced.
Such an interpretation appears to me to be excluded by section 7 of the Ordinance: To say that one document should
or should not have priority over another would be meaningless unless that priority was intended to affect the rights of
the parties to the documents. Mr. Conway’s final argument on the construction of the Ordinance is that to hold that the
transaction is void would lead to absurd results. He puts the following hypothetical case. “Supposing I agreed with Mr.
Smith in writing that I will sell him a large quantity of machinery at the price of £10,000 and I would allow him to store
this in a small corner of a yard which belonged to me on terms which amounted to a demise for 2 years at a rental of,
say, £5 per annum. Mr. Smith very kindly pays the whole of the purchase money, but when he asks for delivery of the
machinery some four months later the agreement between us is null and void because the document containing the
agreement has created an interest in land and is null and void for want of registration- you can neither have your
machinery nor the land.” And then Mr. Conway goes on to suggest that Mr. Smith would be unable to recover his
£10,000 if even one bolt had been delivered to Mr. Smith by Mr. Conway because there had not been a total failure of
consideration.
If this were the result of holding that the transaction was null and void that result would be absurd. But fortunately for
Mr. Smith no such result would follow. Either the agreement is separable or it is not. If it is separable no difficulty
arises. If it is not separable then the transaction being null and void no property passed and the £10,000 still belongs to
Mr. Smith and the bolt to Mr. Conway. Mr. Smith is entitled to the return of his £10,000 and Mr. Conway to the return of
his bolt or its value. I therefore hold that by virtue of sections 4 and 6 of the Ordinance the lease dated the 24th
January, 1947, is null and void for want of registration and that that lease can have no effect whatever, it. can pass no
title or interest either in law or equity and that the transaction evidenced by the document of the 24th January, 1947, is
equally null and void and cannot be enforced nor have any effect.
That being so, what is the position?
The trial Court found as a fact that the respondent did not enter into possession until the 15th May, 1947. There was
evidence upon which the trial Court could so find and I see no reason to disturb that finding of fact. The respondent
also paid to the appellant £120 as one year’s rent in advance on the 8th May, 1947. By presumption of law a tenancy
from year to year was created as from the 15th may, 1947, by the respondents entry into possession and payment of
an annual rent. As the sum of £120 was paid as one year’s rent in advance, the respondent must be taken to have
agreed that the rent was to be £120 per annum and was to be paid yearly in advance.
Ms. Conway contends that that payment of £120 must be taken to have been paid as rent for the period from the 1st
February, 1947, to the 31st January, 1948, and that all the terms of the lease of the 24th January, 1947, must be
imported into the tenancy agreement implied by law, so far as those terms are consistent with a tenancy from year to
year. The tenancy must therefore be taken to have commenced on the 1st February, 1947, and in consequence the
second year’s rent was due on the 1st February, 1948. I am unable to agree with those contentions. The lease having
been deprived by the Legislature of all efficacy cannot be called in aid to show that the tenancy commenced on the 1st
February, 1947, nor for the purpose of importing any other of its terms into the tenancy implied by law. The
presumption is that the tenancy commenced on the date of entry into possession, and that presumption can only be
rebutted by proof that there was a fresh agreement between the parties that the lease should commence at some other
date. What evidence is there of such fresh agreement? 1 can find none. That the respondent on 8th May, 1948, gave

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appellant a cheque on the face of which was written” House rent for one year “is not enough. Mr. Conway contends
that you must link that up with the lease of the 24th January, 1947. That cannot be done because the lease has no
effect than as if it had never been entered into. The burden of proof of such a fresh agreement lies on the appellant
and he has failed to discharge it.
Although I cannot agree with all the reasoning of the learned magistrate who tried the case, he arrived in the end at the
right conclusion and properly gave judgment for the respondent with costs.
For the reasons I have stated this appeal is dismissed with costs against the appellant both in this court and in the
court below.

Of the two decisions (Sundi v Ravalia, Ward v Casale and Burney) the decision
of Mr. Justice Woodman in Sundi v Ravalia appears to be correct in the context
of sections 4 and 6 of the Lands and Deeds Registry Act as well as taking into
account the reasoning as well as the decision in Walsh v Lonsdale.
The decision in Sundi v Ravalia was followed by the Supreme Court of Zambia
in Krige and Another v Christian Council of Zambia 15, where it was held, inter
alia, that the engrossment of the lease for execution and the accompanying letter
constituted a valid memorandum in writing of an agreement for a lease which
should have been registered under the Lands and Deeds Registry Ordinance and
that the effect of non registration was that the agreement was void for all
purposes whatsoever.

10.4 Summary of Chapter Ten

The doctrine in Walsh v Lonsdale has to be understood in the context of facts

surrounding the case itself and the law in issue i.e the provisions of Section 3 of
15
[1975] ZR 152.

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the Real Property Act, of 1845, section 25 of the Judicature Act, as well as the
principle of equity that ‘ equity looks on as done, that which ought to be done’
The Ward v Casale and Burney case and Sundi v Ravalia decided by the High
Court of Northern Rhodesia show the intricacies associated with the application
of the doctrine. The Hina Furnishing v Mwaiseni Stores Ltd case underscores
the principle that the effect of Walsh v Lonsdale in equity depends upon the
willingness of the Court to grant the discretionary remedy of specific
performance.

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