Hazel Simbotwe and Anor v Bell Equipment and Sales Services (Pty) Limited (APPEAL NO. 42/2017) [2018] ZMCA 619 (27 April 2018)

IN THE COURT OF APPEAL HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: HAZEL SIMBOTWE FEBBY SIMBOTWE AND ~B - ~ coUR'f OF / I J . \ ·.• I ~-- ( 2 7 .t.,:::•~; 2~'/8 . · ~il..l.:.~~-..-.-.., ,. ' REGIS Ob7 APPEAL NO. 42/2017 1 ST APPELLANT 2ND APPELLANT BELL EQUIPMENT AND SALES SERVICES (PTY) LIMITED RESPONDENT CORAM: MCHENGA DJP, CHISHIMBA, KONDOLO SC, JJA On tst August, 2017 and On 27th April 2018. For the Appellant For the Respondent : Ms . N. Mulenga Messrs Isaacs & Partners standing in for : No Appearance Messrs Mulenga Mundashi Kasonde Legal Practitioners JUDGMENT KONDOLO SC, JA delivered the Judgment of the Court CASES REFERRED TO: 1. Abel Mulenga and Others v Mabvuto and Adan Chikumi and Others (2006) Z. R. 33 LEGISLATION REFERRED TO: 1. The Lands and Deeds Registry Act, Chapter 185, Laws of Zambia 2. The High Court Rules, High Court Act, Chapter 27, Laws of Zambia SUPREME COURT i.!_7 MAY 20!8 ~ L ~BRARY .... --------~ This is an Appeal against the Ruling of the High Court on Joinder of parties to proceedings. J2 of9 The facts forming the background of this Appeal emanate from the liabilities and benefits attached to Lot No. 2779 /M, Lusaka, which belongs to Enock Simbotwe (deceased). The said property became subject of an equitable mortgage serving as collateral to a contract between the Respondent and C&B Enterprises Limited. In October 2015, the Respondents sued C&B Enterprises Limited as the 1st Defendant and Enock Simbotwe, as the 2 nd Defendant. However, Enock Simbotwe had died much earlier in 2013 and this prompted the Appellants to apply to have the deceased removed from the proceedings and that they be joined in his place, in their capacity as Administrators of his estate. The Respondent vehemently objected to the application on the premise that the Letters of Administration were null and void because they were not filed within 12 months as required by the Lands and Deeds Registry Act thus rendering the Appellants powerless to claim any interest in the land. The learned trial Judge granted the Order to have the deceased, Enock Simbotwe, removed from the proceedings but however, agreed that the Letters of Administration were void on the basis of non-registration. The trial Judge thereafter ruled that because the Appellants' application was solely premised on the said Letters of Administration, any interest as intended interveners culminating from the order was of "no effect and any leg to stand on". J3 of9 Aggrieved with the Judgment of the lower Court, the Appellants have put forward two Grounds of appeal, namely: 1. The Court below erred in law and fact when it held that the Order of Appointment of the 1st and 2 nd Intended Interveners as Administrators of the Estate of the late Enock Simbotwe, the 2 nd Defendant herein, is null and void for being contrary to Sections 4, 5, and 6 of the Lands and Deeds Act, Cap 185 of the Laws of Zambia. 2. The 1st and 2 nd Interveners as Administrators of the Estate of the late Enock Simbotwe have no locus standi for the Court to join them to proceedings. The Appellants in support of the Appeal filed written Heads of Arguments on which they placed reliance. In reinforcing Ground one, the Appellants' Counsel submitted that the Respondent Company which was incorporated in Botswana had sold earth moving equipment to C&B Enterprises Limited, the 1st Defendant in the lower Court. It was submitted that the directors of C&B Enterprises Limited as part of their payment plan, executed personal guarantees and further pledged a Title Deed relating to property No . L/2779 /M Lusaka which belonged to the late Enock Simbotwe. J4 of9 Counsel for the Appellants recapped how the Appellants had been prevented from administering the estate of Enock Simbotwe despite being granted Letters of Administration. Counsel submitted that the contract between the Respondent and C&B Enterprises Limited was executed after the demise of Enock Simbotwe and they, as Administrators, did not pledge the Title Deed. It was argued that the Court should have asked itself whether the failure to comply with registration provisions made the whole order of appointment null and void or whether the nullity related only to disposition or interest in land. We have been called upon to set aside the portion of the Ruling declaring the order of appointment of the Appellants null and void. In argumg Ground two, Counsel for the Appellants submitted that the established principle that affairs of a deceased are under the management of personal representatives applies in this case. Therefore, given the fact that the Appellants were appointed as Administrators of the estate of Enock Simbotwe, only they could have given consent to create an equitable mortgage . Accordingly, they alone were the right and proper parties to the action and thereby bestowed with the right to interrogate the manner in which the Respondent acquired the title deed for the said Lot No. 2779 /M, Lusaka. As per tradition, the Respondent filed their arguments in response and argued that the trial Judge addressed her mind to the interest in land claimed by the Appellants on the strength of the Order of Appointment of JS of9 Administrators. It was submitted that the position of the Court below was to the effect that the Order of Appointment was null and void in so far as it related to any interest in property. Therefore, it is inaccurate for the Appellants to state that the lower Court pronounced itself to the effect that the Order of Appointment was null and void in its entirety. In refuting the arguments in Ground two, Counsel for the Respondent argued that the Appellants needed to satisfy the guidelines promoted in the case of Abel Mulenga and Others v Mabvuto and Adan Chikumi and Othersl 11 which require a party, to an application for joinder, to show that they have an interest in the subject matter and not only that they will be affected by the decision of a Court. To bolster the argument the Respondent reproduced an excerpt of the Ruling at page 1 7 of the Record of Appeal in which the Court held that the Appellants failed to show sufficient interest in the matter. It was further argued that despite the fact that it is established jurisprudence that an estate of a deceased is managed by personal representatives, in this particular instance, the Orders of Appointment were not sufficient evidence of an interest in the property to merit an application for joinder because as things stood, they were null and void on account of failure to comply with Sections 4 and 5 of the Lands and Deeds Registry Act. We have considered the Record of Appeal as well as the arguments advanced by Counsel for the Parties and because the two Grounds of Appeal raise the same principles of law, we shall deal with them as one. J6 of9 The provisions of the Lands and Deeds Registry Act as they relate to registration of probate: Section 5(3) (3) Probate of a will affecting land or any interest in land shall be registered within twelve months of the grant thereof or the sealing thereof under the provisions of the Probates (Resealing) Act, as the case may be. Section 6 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 that- (i) 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; (ii) 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. J7 of9 The lower Court's Ruling is clear that the application for joinder was denied solely on the basis that the Letters of Administration were not registered in accordance with the cited legislation and therefore no interest in the land arose. Section 6 of the Act specifies that failure to register the probate within 12 months shall result in the probate being null and void in so far only as it affects land or any interest in land. The Appellants in this case applied to be joined to the action which mainly revolved around an equitable mortgage allegedly entered into by the deceased and in so far as the equitable mortgage is concerned, the only party that can consent to its creation is the executor or an administrator of the estate, a trustee or any other person with authority to stand in the shoes of a legal owner. The Record shows, at page 42, that the Certificate of Title, Valuation Report and Consent from the executor of the property were submitted to the Respondent on 24th May, 2014 following an undertaking to do so on 17th March, 2014. We note that there was reference to an executor and yet the Appellants claim to be Administrators to the estate of Enock Simbotwe whose estate includes the subject property. The Respondent's argument in the lower Court reposed in the provisions of Section 6 nullifying the Letters of Administration obtained by the Appellants. Section 6 provides what follows in circumstances where Letters of JS of 9 Administration are not registered according to Section 5(3), and under the proviso, an affected party can seek an extension of time within which to register the Letters of Administration. When considered in the context of cases cited by the trial Court itself; in the spirit of preventing a multiplicity of actions, the Court should have exercised its power under Section 6 especially taking into account that the Respondent would not suffer any prejudice. It would be extremely untidy, whilst the proceedings in this matter are progressing, to have the Appellants apply for an extension of time within which to register the Letters of Administration and for Joinder before another Court. Further, there is the ever-present danger of the current proceedings terminating before the validity of the Letters of Administration is rectified and there is every possibility that the subject matter could be disposed of, further complicating the matter. It is desirable that all issues between the same parties and over the same subject matter be settled before the same court. In any event Order 30 Rule 14 of the High Court Rules clearly indicates that any person entitled to or having property subject to a legal or equitable charge can commence a mortgage action and in this case the action was already commenced and thus the only way to defend such an action was by way of joinder which application the Appellants made. In consonance with Order 14 of the High Court Rules, the Affidavit in support of the Summons for an Order of Joinder discloses an undeniable interest sufficient to merit an Order for Joinder. It is thus prudent that the Appellants be joined to the proceedings to assert their rights to the disposition, if any, of the property which falls within the Estate over which they were granted Letters of Administration. J9 of9 The Appeal is allowed and the Ruling of the lower Court dated 14th October, 2016 is hereby Set Aside. We Order that the Appellants be joined to the Proceedings in Lower Court and that costs be for the Appellants. DATED AT LUSAKA THIS 27TH DAY OF APRIL 2018 C. F. R MCHENGA DEPUTY JUDGE-PRESIDENT F. M. CHISHIMBA COURT OF APPEAL JUDGE M. M. KONDOLO,SC COURT OF APPEAL JUDGE ~-========-~~