Abaleka Mwandila v Richard Kazala (APPEAL NO. 116/2021) [2023] ZMCA 319 (22 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 116/2021 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ,--.--':"":'::---..___ ✓ REF C I V ABALEKA MWANDILA ~x couR r ... APPELLANT AND RICHARD KAZALA RESPONDENT CORAM: CHASHI, MAJULA and PATEL, JJA ON: 23RD August and 15th November 2023 For the Appellant : T. M. Chabu, Messrs Terrence Chabu and Company For The Respondents: E . C. Banda SC and T. Chibeleka, Messrs. ECB Legal Practitioners RULING CHASHI JA, delivered the Ruling of the Court. R2 Cases referred to: 1. Hudson v Hudson ( 1737) 1 Atk 460, 26 ER, 292 2. Earl of Warwick v Greville (1809) 1 Phill. Ecc. 123, 161 ER, 3. Isaac Tantameni (Executor of the Will of the late Mwalla Mwalla) v Liseli Mwalla ( 1995-1997) ZR 199 4. Standard Chartered Bank (Z) PLC v Nthanga & Others - SCZ Appeal No. 051 of 2016 5. Pamela Mthunzi Zulu v Peter Zulu and Two Others SCZ Appeal No 218 of 2012 Legislation referred to: 1. The Court of Appeal Act No 7 of 2016 Rules referred to: 1. Court of Appeal Rules Statutory Instrument No 65 of 2016 1.0 INTRODUCTION 1.1 By a notice of motion dated 6 th September 2023, the Respondent sought the dismissal of the Appellant's appeal pursuant to Section 9 of the Court of Appeal Act as r ead with Order X Rule 4 and Rule 9 and Order VII Rules 1 & 2 of the Court of Appeal Rules . R3 1.2 We decided to deal with the application on paper based on the affidavit evidence which in our view was satisfactory. 2.0 BACKGROUND 2.1 Before the Court below, the Appellant prosecuted the matter with a co-administrator, one Daisy Mwandila. A Ruling in favour of the Respondent was delivered on 12th January 2021. 2.2 Discontented with the Ruling, the Appellant lodged an appeal in this Court on 22nd January 2021. At the hearing of that appeal, on 23rd August 2023, Counsel for the Respondent made a preliminary objection to the appeal which we ordered be formally filed. That application is presently before us. 3.0 THE APPLICATION 3.1 The Respondent objects to the appeal on two grounds as follows: 3.2 Firstly, that the Appellant had no capacity to prosecute this appeal as a sole administrator when he appeared jointly with a co-administrator in the Court below. Relying R4 on Section 20 of The Intestate and Testate Succession Act, Counsel for the Respondent argued that where there are two a dministrators, it is not legally tenable for one to act without the knowledge and approval of the other. That where an administrator intends to act alone, they must seek consent of the other administrator or vary the a ppointing instrument. 3.3 The Respondent also relied on the cases of Hudson v Hudson 1 and Earl of Warwick v Greville2 for the position that where there is a joint appointment as administrators, the administrators must act in unison and this is so even when instituting a suit. 3 .4 The second ground was that this Court is precluded from considering the interest of non-parties such as the Appellant who lost capacity to prosecute the matter in the Court below because it was ruled that the joint administrators' letters of administration were null and void. Counsel argued, relying on the case of Isaac Tantameni (Executor of the Will of the late Mwalla Mwalla) v Liseli Mwalla3 that the Court is legally and RS effectively precluded from considering the interest of non parties. That, therefore, there is no competent Appellant, thus the appeal is incompetent and ought to be dismissed. 4.0 RESPONSE TO THE APPLICATION 4.1 The Appellant asserted that at the time instructions to appeal were given, Daisy Mwandila had recused herself as co-administrator and renounced her administratorship making the Appellant the sole administrator. In support thereof, the Appellant exhibited letters of administration dated 31 st May 2023 were he is indicated as the sole administrator. 4 .2 In response to the argument that the Appellant could not lodge the appeal as a sole administrator, Counsel for the Appellant argues that no cause shall be defeated by reason of non-joinder and misjoinder of parties. In this regard, Counsel relied on Order 15 Rule 6(1) of The Rules of t h e Supreme Court and the case of Standard Chartered Bank (Z) PLC v Nthanga & Others . 4 R6 4.3 Placing further reliance on Section 25 of The Intestate and Testate Succession Act, Counsel for the Appellant submitted that the Appellant has the capacity to commence the appeal without the written consent of the other administrator as she is no longer the administratrix of the late Kidinson Mwandila. 5.0 OUR DECISION 5.1 We have considered the affidavit in support of the motion, exhibits and arguments filed by the Respondent. 5.2 It is common cause that when this matter was prosecuted in the High Court, the Appellant appeared with a co administrator. On 22nd January 2021, the Appellant filed an appeal in this Court without the co-administrator. 5 .3 According to the Respondent, this rendered the appeal incompetent and robbed us of jurisdiction to entertain it. The Appellant counters this position by asserting that at the time he filed the appeal, the co-administrator had renounced her position as administratrix. R7 5.4 In th e case of Pamela Mthunzi Zulu v Peter Zulu and Two Others, 5 th e Suprem e Court guided as follows in relation to joint administrators: "In a case such as this one, where there are two administrators appointed to manage an estate, it is in the interest of justice that those co administrators should co-operate and exercise their powers unanimously, unless the letters of administration provide otherwise. Where there are several administrators, their powers should be exercised by the majority of them. This is in line with Section 20 of the Intestate Succession Act, which provides that:- "Where there are several administrators, their powers may, in the absence of any direction to the contrary contained in the letters of administration, be exercised by the majority of them." RB 5.5 Based on the above authority, it is clear that joint administrators exercise their power jointly unless the letters of administration provide otherwise. 5.6 In the present case, however, the Appellant's co administrator, renounced her administratorship at the time the appeal was being lodged in this Court. In our view, the effect of that was she relinquished her powers which the Appellant could then exercise solely. 5. 7 The letters of administration exhibited in the affidavit in opposition to the notice of motion marked "AM l " are proof of this. More so because the said letters were applied for and granted before the objection to the appeal was made. 5. 8 We are aware that at the time of lodging the appeal, the Appellant had not yet obtained the fresh letters of administration indicating that he was sole administrator, however, this is an issue that has since been remedied. R9 5. 9 In relation to capacity to prosecute the matter on appeal, we are of the view that this is the issue before us in the appeal proper and as such is not suitable for determination as a preliminary objection. 5.10 Given what we have stated above, we will proceed to hear the appeal as there will be no prejudice occasioned to the Respondent. We accordingly dismiss the motion. Costs will abide the outcome in the Court below. J. C ASHI COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE A. N. PATEL COURT OF APPEAL JUDGE