Richard Kalinda (Suing as a beneficiary of the Estate of Isaiah Champwa Kalinda and Administrator of the Estate of Esther Kalinda) and Anor v Makuku Farms Limited and Anor (APPEAL No. 5/2022) [2022] ZMSC 52 (9 November 2022)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL No. 5/2022 BETWEEN: RICHARD KALINDA (Suing as beneficiary of the Estate of Isaiah Champwa Kalinda and Administrator of the Estate of Esther Kalinda) 1 ST APPELLANT MILDRED K. MUCHA WA (Sued as Administrator of the Estate of Gilbert Kalinda) 2ND APPELLANT AND MAKUKU FARMS LIMITED DANIEL CHAMPWA KALINDA 2ND RESPONDENT Coram : Wood, Kabuka, and Mutuna JJS On 1st November, 2022 and 10th November, 2022 For the 1st Appellant : Mr C. M . Sianondo and Mr G. Mileji Messrs Malambo & Co For the 1st Respondent: Mr M. Ndalameta Messrs Musa Dudhia & For the 2 nd Respondent: (No appearance) Co RULING WOOD, JS, delivered the Ruling of the Court. Cases referred to: 1. Brenda Muzyamba v Martha Muzyamba Sinnabbomba and others (Appeal No. 11 of 2019) -R2- 2. Zambia Railways Board v Fluck (1993) ZR418 3. Noel Chembe v DTR Investment Limited (Appeal No. 68 of 2017) 4. Moses B. Mulevu. v Major Bexter C. Chibanda & Others -Appeal No. 21/2010 5. David Ojah Malembe v Thomas Ndonyo SCZ judgment No. 22 of Legislation referred to: 1. Rule 19 of the Supreme Court Rules Cap 25 of the Laws of Zambia 2. Section 24(1) of the Intestate Succession Act Cap 59 of the Laws of Zambia INTRODUCTION [ 1] This is a motion of preliminary objection to the appeal by the 1st respondent pursuant to Rule 19 of the Supreme Court Rules Cap 25 of the Laws of Zambia seeking an order that the appellants do not hav the capacity to prosecute this appeal without the administrators of the estate of the Late Isaiah I Champwa Kalinda. THE 1ST RESPONDENT'S AFFIDAVIT IN SUPPORT [2] The relevant parts of the affidavit in support sworn by the 1st respondent's Managing Director Nick George James Peterson state as follows: [2.1] On 27 th August, 2019 an action was commenced under -R3 - Cause Number 2019/HPC/0397 in the High Court by the appellants herein (as plaintiffs) , together with Phanwell Kanini, Manenga Jarton and Matildah Kalinda against the 1st respondent, 2 nd respondent and First National Bank Zambia Limited as defendants. The case concerned property that belonged to and farmed part of the estate of Isaiah Champwa Kalinda. [2. 2] Only Phanwell Kanini and Manenga Jarton are administrators of the estate of the Late Isaiah Champwa Kalinda. [2. 3] On 12 th December, 2019 , the High Court delivered a ruling on an application by the plaintiffs for an order to \ determine their case on points of law. The High Court ordered the cancellation of the 1st respondent's certificate of title in relation to Subdivision B of Farm 3140 Mazabuka (the "Property") , on the basis that the 2 n d respondent as an administrator had no authority to sell the property to the 1st respondent. The respondents successfully appealed to the Court of Appeal in Appeal No. 70/2020 . [2.4] By a notice of motion -filed into the Court of Appeal on 8 th -R4- November, 202 1, the plaintiffs sought leave to appeal to this court and were granted leave to do so by the Court of Appeal in a ruling delivered on 2 nd June, 2022. [2.5] Prior to the delivery of the ruling granting leave to appeal, and prior to filing of the notice of appeal and memorandum of appeal in this court, there was a significant development. On 31 s t May, 2022, the administrators of the estate of the late Isaiah Champwa Kalinda withdrew their participation in the suit and abandoned the notice of motion for leave to appeal which has resulted in the administrators not challenging the judgement. [2 .6] The 1st appellant is suing as beneficiary of the estate of the Late Isaiah Champwa Kalinda, and administrator of the estate of the late Esther Kalinda while the 2 n d appellant is suing as beneficiary and administrator of the estate of the Late Gilbert Kalinda. [2. 7] The property whiclJ, formed part of the estate of the Late Isaiah Champwa Kalinda is the subject of the appeal and -RS - as such the apP,ellants have no legal basis upon which to proceed with this appeal without the blessing of the administrators of the estate of the late Isaiah Champwa Kalinda. THE 18 T APPELLANT'S AFFIDAVIT IN OPPOSITION [3) The 1st appellant filed an affidavit in opposition on 24 th August, 2022. The 1st appellant has 1n his affidavit in opposition outlined in great detail that he was a son and beneficiary of the estate of the Late Isaiah Champwa Kalinda as well as an administrator and a beneficiary of the estate of the Late Esther Kalinda, who was his mother and surviving spouse to the Late Isaiah Champwa Kalinda. This entitled his mother to the estate and in turn entitled him to her estate. [4) The 2 nd appellant is an administrator of the estate of the Late Leornard M polela Kalinda who survived his father the Late Isaiah Champwa Kalinda and is therefore, entitled to claim from the estate. [5] The 1st appellant has exhibited two grants of letters of -R6 - administrating both dated 21 s t August, 2019 in respect of the estates of the Late Esther Kalinda and Gilbert Kalinda which confirm that the l .st and 2 nd respondent are administrators of the said estates. [6] The 1st appellant co1;1firmed that he sought leave to appeal from the Court of Appeal together with the two administrators who have since abandoned the case. The 1st appellant was dissatisfied with the Court of Appeal judgment and pointed out that the 1st respondent having dealt with the 2 nd respondent , who purported to be an administrator, ought to have been aware of the beneficiaries as they reside at the same farm and that the 1st respondent was aware of their interest. What the administrators were asserting is what affected the appellants and the appellants had not abandoned their entitlement as beneficiaries of the estate of the Late Isaiah Champwa Kalinda. The appellants had a legal basis to appeal and did not need the blessings of an administrator and in any event the motion is improperly before thi$ court as the same should have been raised in the appeal instead of raising a motion. I THE 15 T RESPONDENT'S AFFIDAVIT IN REPLY -R7- [7] An affidavit in reply was sworn by Nick George James Peterson and filed on 1st September, 2022. [8] The affidavit in reply challenges the inconsistencies between the capacity of the 2 n d appellant and the letters of administration granted to her in respect of the estate of the late Gilbert Kalinda. That contrary to the assertion by the appellants that they have a personal interest in the matter, there exists no claim or right subsisting as between the alleged beneficiaries and the 1st respondent. If anything, it was never, proven in the High Court action that the alleged beneficiaries are who they claim to be, as the matter never went to trial. The 1st respondent never dealt with the appellants, who as a matter of fact have no authority in relation to actions maintained by the estate of the Late Isaiah Champwa Kalinda. [9] The 1st respondent was unaware of the fact that the appellants had lodged the appeal, and on 21 st July, 2022 it filed into court a preliminary objection challenging the appellants' capacity to prosecute the appeal without the administrator of -R8- the deceased 's estate. The said preliminary objection was served on the appellants ' advocates on 21 st July, 2022. As such, the preliminary objection is properly before this court. THE 1 sT RESPONDENT'S HEADS OF ARGUMENT [ 10) The 1st respondent on 21 st July, 2022 filed heads of argument in support of the notice of motion. The first argument by the 1st respondent is that the appellants do not have the legal standing to prosecute this appeal. The respondent had in support of this argument relied on Section 24( 1) of the Intestate Succession Act Cap 59 of the Laws of Zambia which stipulates that: "24(1) Subject to _any limitations and exceptions contained in a grant of letters of administrations the grant entitles the administrator to all rights belonging to the deceased as if the administration had_ been granted at the moment after his death ..... " [ 11] According to counsel for the 1st respondent, the import of s ection 24( 1) of the Intestate Succession Act is that an administrator derives authority to act on behalf of an estate from a grant of letters of administration. [12] We were also referred to the case of Brenda Muzyamba v -R9- Martha Muzyamba Sinnabbomba and Others 1 in which we interpreted Section 24(1) of the Intestate Succession Act to mean that an administrator derives his authority from the letters of administration which must be reckoned from the moment of the death of the deceased. We however, cautioned in that case that this authority does not give the administrator the right to convert the property to his own use or to deal with the property in a manner detrimental to the rights or interests of the beneficiaries under the Act. [ 13] Counsel further submitted that in the case of Zambia Railway Board v Fluck2 where the respondent had initially been granted letters of administration but continued to pursue an action on behalf of a deceased estate even after the letters of administration was revoked, we held that an administrator was undoubtedly, not entitled to continue the action after his grant had been revoked. The relevant part of that judgement which is at pages 422-423 states as follows: "When the original summons was issued herein Donald William Fluck had been properly appointed administrator under the grant of administration with will annexed and was thus -RlO- entitled to sue on behalf of the estate in his representative capacity. Undoubtedly Mr Fluck was not entitled to continue the action after his grant had been revoked. It does not follow however that the action abated on revocation of the grant. Here it is necessary to distinguish the consequences which flow from a revocation in cases where the deceased has died intestate and where the deceased has left a will appointing an executor. If the deceased in this case had died intestate it is clear that the action could not have been continued until a new administrator had been appointed and any steps in the action taken after the revocation and before the new grant was issued would have been a nullity. In this case, however the deceased had appointed his wife Eileen Ellen Louvet as executrix under his will and she derived her right to sue on behalf of the estate from that will, not from the grant of probate. I would accept that she temporarily abandoned her right when she renounced in favour of Mr Fluck. Once his grant was revoked however, her right to sue was resuscitated and she was entitled to continue the action even though she had not then taken out probate. The different position of an executor as compared with that of an administrator in this regard was explained by Luxmoore, L. J., in Ingall v Moran as follows: "It is, I think, well established that an executor can institute an action before probate of his testator's will is granted and that, so long as probate is granted before the hearing of the action, the action is well constituted although it may in some cases be stayed until the plaintiff has obtained his grant. The reason is plain. The executor derives his legal title to sue from his testator's will; the grant of probate before the hearing is necessary -Rll- only because it is the only method recognised by the rules of court -by which the executor can prove the fact that he is the executor .... An administrator is, of course, in a different position for his title to sue depends solely on the grant of administration." [14] The above authority according to counsel for the 1st respondent makes it abundantly clear that an administrator's authority to sue depends on the grant of letters of administration. The implication 1s that it is only an administrator duly appointed who can conduct matters on behalf of a deceased estate. It follows then that a party who is not an administrator cannot sue or be sued on behalf of a deceased estate nor can a beneficiary bring proceedings in his or her own name on behalf of the estate. This was also the position taken by the Court of Appeal in Noel Chembe v DJR Investment Limited3 when it held that: "Since the registered proprietor of the property was deceased and the appellant was claiming an interest on the basis of being a beneficiary,. such claim could only be sustained through an executor or administrator. In this case, since the appellant's father died intestate, recourse must be had to the Intestate Succession Act ... By virtue of section 24 of the Intestate Succession Act, following her appointment as administrator of the estate, -R12- Theresa Hope Lwembe Mamho, assumed proprietary interests of the appellant's father, in Lot 275/M Central Province. Consequently, we find that the trial judge rightly found that the appellant had no locus standi to commence these proceedings". [ 15) Counsel for the 1st respondent concluded his submission by stating that for actions commenced on behalf of an estate of a deceased person the law is settled that only a person appointed as an administrator of an estate can commence an action and continue to pursue an action in their representative role as an administrator. [16) The appellants have questioned the propriety of ra1s1ng a preliminary objection when it should have been raised in the appeal instead of raising it as a motion. They have relied on our decision in Moses B. Mulevu v Major Bexter C. Chibanda & Others4 in which we held that the motion in that case should have been raised in the main appeal, as we considered that motion to have been an attempt to circumvent the main appeal. [ 1 7) With regard to arguing the merits of the motion, the appellants have argued that it is sufficient to show that they are affected -R13- or likely to be affected or aggrieved by the proceedings in the suit and that they have a personal interest in the matter at hand. [18] The appellants explained what amounts to a cause of action and how it is connected to the doctrine of locus standi. They have gone to considerable lengths to draw a parallel with various authorities. We do not think the numerous authorities cited are relevant or indeed address the issue at hand which is, whether or not a party can pursue a claim arising out of a deceased estate independent of a person who has been granted letters of administration relating to that estate? While we appreciate the effort made in trying to explain the definition of a cause of action and what amounts to locus standi, these two concepts should have been referred to within the context of an estate under the Intestate Succession Act which is what the motion is all about. Consequently, we do not see the relevance of these numerous authorities with regard to the issue at hand and nothing will be gained from reviewing them in any detail. [ 19] The appellants have however, argued that the purpose of the -R14- Intestate Succession Act was to give parties the right to approach the court. They have cited the case of David Ojah Malembe v Thomas Ndonyo5 in support of this proposition. In that case we held that: "The Intestate Succession Act was put in place as already pointed out, to protect eligible beneficiaries and to direct how intestate estates should be distributed". [20] Arising out of the above quotation, the appellants have argued that if beneficiaries as in the position of the appellants are not protected, they possess the right to approach the court and assert their rights and as such have requisite locus standi. [21] They are missing the point here. While they may have a grievance , their grievance should fallow certain procedural requirements when dealing with deceased estates. They have the right for instance to call an administrator to account or have his appointment revoked. ) OUR DECISION [22] We have carefully considered this motion, the affidavits in support, opposition and in reply as well as the heads of ' -RlS- argument. The first issue which counsel for the appellants had raised was that the notice of motion was not properly before us and that it should have been argued as part of the appeal. We do not agree. Rule 19 of the Supreme Court Rule Cap 25 provides that: "(l) A respondent shall, where the respondent intends to take a preliminary objection to any appeal, not less than seven days prior to the hearing of the appeal give notice thereof to the Court and to the other party to the appeal. (2) The Court may, where the notice referred to in subrule(l) is not given refuse to entertain the objection or adjourn the hearing and make such order as it may consider just. (3) This rule shall apply to a cross-appeal" [23] While we agree with counsel for the appellants that in Moses B. Mulevu v Major Bexter C. Chibanda & Others we held that the issue that was raised in the motion should have been raised in the main appeal, Rule 19 allows a respondent to take a preliminary objection to any appeal. Each case must, therefore, be decided on its own particular -R16- facts as it does not mean that once an appeal is filed then a respondent is debarred from taking a preliminary objection. Given the undisputed facts in this motion, which we shall address shortly, the 1st respondent was entitled to take a preliminary objection. It is quite plain from the undisputed facts that Phanwell Kanini Kalinda and Manenga Jarton were granted letters of administration on 21 st August, 2019. In respect of the estate of the Late Isaiah Champwa Kalinda and were parties to this action when it commenced under cause 2019/HPC/0397 but withdrew and abandoned their appeal on 31 st May, 2022. At that point, the proceedings came to a halt as the other parties could not proceed in the absence of the administrators. (24] We therefore agree with Mr Ndalameta when he cites the case of Zambia Railways Board v Donald Fluck in support of the argument that the appellants cannot proceed in the absence of an administrator is the correct position at law. This does not, however, mean that the cause of action was permanently incapacitated as the Intestate Succession Act provides for the revocation of grants and removal of -.... a d m i... ~i i'-r a or e same Act also e su ccession of cea hol fie ~. .. i~ ii/ an a dministrat or has bee _ e 0 ed a .. .. c,·~ e e a the litigation can :·_5, e. C - fl. CL t a ' :::, v r . a. ·1 ot e - ., . . : __ :..c· i el•·"" · erested p arties on n ue with the litiga ::: ... e ab e f validly a ppointed ad a tor. (25] h a e air above that the 1s t c~1.e,__ o h e ap p eal must succe itl s ......... ........ -~ \ .. · ............... . -· ~~ s s ...... ·· ·· ···1'•·;l -- ·· ,. ······· , ........ , ... - . ·- ~ '